FILE - This combination of undated file photos shows Tamerlan Tsarnaev, 26, left, and Dzhokhar Tsarnaev, 19. The FBI says the two brothers are the suspects in the Boston Marathon bombing, and are also responsible for killing an MIT police officer, critically injuring a transit officer in a firefight and throwing explosive devices at police during a getaway attempt in a long night of violence that left Tamerlan dead and Dzhokhar captured, late Friday, April 19, 2013. (Credit: AP)
We need to be able to answer that question. Because war cares nothing for the Bill of Rights. War allows the state to scoop up American citizens, hold them in detention at military bases for some ill-defined amount of time, and interrogate them...thoroughly. War sets aside the United States Constitution.
Senator Lindsay Graham says "radical Islam has regenerated" and we're fighting a "radical ideology." That sounds about right. But not good enough.
The rise of the Faisal Shazads and Tsarnaevs of the world has coincided with the fall of al-Qaeda proper. The new terrorist is al-Qaeda inspired, as opposed to al-Qaeda connected. But how do you wage a war on inspiration or ideology?
Earlier this week there was a nonsense debate over whether Dzhokar Tsarnaev should have been read his Miranda rights. As though Miranda is the gold-star-symbol of the American justice system. It is not.
But I get the sentiment of those that wanted Tsarnaev to hear that 1966-SCOTUS-created warning. They were worried that we were setting aside our justice system, our Constitution, in essence, who we are in the face of a horrendous crime. Their worries were correct, just misplaced.
Instead look to Graham and Senator John McCain, Senator Kelly Ayotte and Congressman Peter King, who have criticized the decision to prosecute Tsarnaev in a federal criminal court. They want to set aside our judicial system...for now... and declare Tsarnaev an enemy combatant in the War on Terror. This would allow him to be held and interrogated without the burdens of the Constitution.
Fine. War allows you do that. As long as we're specific about when the Constitution can be set aside. As long as we're specific about who we are fighting.
The War on Terror was created by the Authorization for Use of Military Force signed on September 14, 2001. It authorized the president to use force against:
"... THOSE NATIONS, ORGANIZATIONS, OR PERSONS HE DETERMINES PLANNED, AUTHORIZED, COMMITTED, OR AIDED THE TERRORIST ATTACKS THAT OCCURRED ON SEPTEMBER 11, 2001, OR HARBORED SUCH ORGANIZATIONS OR PERSONS.. "
The AUMF limited the enemy to those involved in 9/11. The National Defense Authorization Act later expanded the enemy to "al-Qaeda" and "associated forces." Graham seems to now be expanding its reach to "radical ideology."
But how do you wage a war on ideology? What are the limits? What are the borders on the War on Terror?
Graham told Fox News:
"Citizenship doesn't give you immunity from the law of war," he went on. "If you take up arms or hostile acts against the nation, you can be killed or captured. That's the law."
He's right. We have a long history from German saboteurs to John Walker Lindh of Americans joining the enemy. Hamdi vs Rumsfeld, a case of an American citizen caught in Afghanistan fighting with the enemy in 2001, established that Americans can be held as enemy combatants. So citizenship does not provide a border in the War on Terror.
Sens. John McCain (l) and Lindsey Graham (r). (Getty Images).
American Citizen on American Soil?
It is unclear whether an American citizen caught on American soil - clearly involved with an AUMF/NDAA-covered group - could be held in military detention as an enemy combatant. This is the exact case of Jose Padilla, an al Qaeda member and U.S. citizen who was arrested at O'Hare Airport in Chicago. Padilla was held for four months in Guantanamo Bay. But the Supreme Court never ruled on whether his military detention was constitutional. We don't know if being an American citizen on American soil is a border on the War on Terror.
American Citizen on American Soil...Seemingly Jihadi...But Not al-Qaeda?
What if you're an American citizen, on American soil, who has adopted radical Islam, and been accused of a horrible atrocity? But you have no formal connections to al-Qaeda. Can we set aside the Constitution?
So far it appears that the Tsarnaevs were radical Islamists, with a hatred of America, inspired by al-Qaeda propagandists like Anwar al-Awlaki...but with no formal connections to any group designated as the enemy in the War on Terror.
Citizenship does not provide a border in the War on Terror. Geography may not provide a border. And there are increasingly arguments that connections do not provide a border. So what are the limits on when the state can live outside the Constitution?
Look, I have no sympathy for the Tsarnaevs. I want to wipe them and those like them off the face of the earth. They provide an easy emotional answer to questions like "who is the enemy?"
But I can imagine situations that aren't so emotionally clear. And because of that, I want a bright line that dictates when the state can set aside the Constitution. So, specifically, who are we fighting?
Will Cain is a regular panelist on 'Real News' Monday Through Friday at 6pm EST on TheBlaze TV. Watch Cain and the rest of the panel debate the issue of identifying new enemies in the War on Terror, during a segment on 'Real News' Monday.