Boston Suspect's Legal Status A Test Case

Michael Hirsh
National Journal

Since 9/11, a debate has raged over whether the conflict with al Qaida and other jihadists should be treated more as a war or a crime. Now the same dispute is roiling over the fate of Dzhokar Tsarnaev, the 19-year-old ethnic Chechen and naturalized American who was captured by authorities in Boston Friday night after a dramatic day-long pursuit. Sen. Lindsey Graham, R-S.C., in a series of tweets, argued that Tsarnaev, one of two suspects in the fatal Boston Marathon bombings, should be treated as an enemy combatant and tried in a military tribunal.

In fact, that’s very unlikely to happen, not least because in the nearly 12 years since 9/11, U.S. authorities have failed to figure out precisely how to reconcile the suspension of legal rights for “enemy combatants” with the Constitution. “The military commissions are in a state of near-total collapse right now. The idea that you would take this kid from Boston and send him down there is laughable,” says Scott Horton, a human-rights lawyer based in New York.

By suspending Tsarnaev’s Miranda rights under the so-called “public safety” exemption for more than a day or so, U.S. and Boston authorities are also taking a slight risk of tainting his prosecution—one that should be fairly open and shut -- in the same way other prosecutions under military tribunals have been damaged. “Everything is being tainted by the intelligence community,” which has sought to gain evidence through extra-constitutional means that have sometimes included harsh interrogation, says Horton. “It’s been given a free hand to do things.”

U.S. officials say they are concerned with other threats, perhaps including plots involving other bombs, that Tsarnaev might know about, but that is difficult to square with the declaration Friday night that the public was out of danger.

It is also not known what might have motivated Tsarnaev and his older brother, 26-year-old Tamarlan, to allegedly commit these acts. A series of postings on social media sites indicate that Tamarlan might have become somewhat radicalized by Islamist teachings, perhaps during a visit to Russia when he might have seen his father living in Makhachkala, Dagestan, a city infused both with jihadist groups and counterterrorism apparatus set up by Russia’s FSB, or intelligence service. But Tamarlan was killed in a shootout with police, and authorities may well find that his seriously wounded younger brother was mainly following the elder Tsarnaev’s lead.

Graham, a former Air Force lawyer, posted a statement on his his Facebook page saying "it is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives," … "The least of our worries is a criminal trial which will likely be held years from now."

Actually, with a huge array of detainees seemingly permanently under detention at Guantanamo, their fates undecided, and the rules for trying them still undetermined, the nature of Tsarnaev’s trial is a fairly significant issue.