The White House Is Right: Tsarnaev Should Be Tried As a Civilian

James Oliphant

Give Rand Paul credit: He’s consistent. He led the Senate inquiry earlier this year into the constitutional limits of the Obama administration’s targeted killing program, and he seems poised again to serve as the counterweight to security-first Republicans such as Lindsey Graham and John McCain over the prosecution of accused Boston Marathon bomber Dzhokhar Tsarnaev. 

In an interview with the Fox Business Network on Monday evening, Paul was asked whether Tsarnaev should be held as an “enemy combatant,” rather than prosecuted as a criminal suspect. “I see no reason why our Constitution isn’t strong enough to convict this young man, with a jury trial, with the Bill of Rights,” the Kentucky Republican replied. “We do it to horrible people all the time. Rapists and murders — they get lawyers, they get trials with juries and we seem to do a pretty good job of justice, so I think we can do it through our court system.” 

Paul was making the same case that Attorney General Eric Holder and the Obama administration have been arguing for years: that the federal court system can effectively prosecute suspected terrorists. Before 9/11, it was the only way the nation could. Since then, however, the U.S. has been operating on dual tracks, with terror suspects who commit crimes on home soil being funneled through established criminal justice channels and suspects captured abroad being indefinitely detained and (sometimes) prosecuted before a military tribunal.

Because he is a naturalized American citizen, Tsarnaev’s case plays havoc with that framework — at least in the minds of senators such as Graham, who believes that Tsarnaev can be held as an enemy combatant “for interrogation purposes.” Graham concedes that as a citizen, Tsarnaev could not be tried before a tribunal, which means that, at some point, he would have to be transferred over to the civilian side anyway. 

This is what happened a decade ago with a terror suspect named Jose Padilla, a U.S. citizen whom the Bush administration held in a brig in Virginia for years without charging him so agents could interrogate him freely without legal counsel. As Padilla’s legal challenge to his detention slowly wended its way through the courts, the administration ultimately decided not to push it and transferred him to the criminal system, where he was convicted in 2007 of conspiracy.

The danger with this approach is that Tsarnaev’s inculpatory statements would not be admissible in federal court whenever he would be prosecuted for his alleged role in the Marathon bombings. That prospect didn’t worry Graham, who seemingly believes the Justice Department’s case is strong enough without the benefit of Tsarnaev’s self-incrimination. (A former military lawyer, the South Carolina senator has apparently never seen a seemingly slam-dunk case crumble before a jury.) According to reports Tsarnaev is responding to questions about his role in the attacks, arguably vindicating the administration’s decision to stick to the letter of law, even as it embraced an aggressive reading of the public-safety exception to Miranda.

In the end, Tsarnaev may provide enough information to keep Monday-morning quarterbacking over the Obama administration’s decision to prosecute him criminally to a minimum. But there could also be an added benefit. While we still don’t know how and to what extent the Tsarnaev brothers came to embrace jihadism, their suspected radicalization is reminder that the U.S. remains engaged in a propaganda war for the hearts and minds of Muslims here and abroad.

The Atlantic recently detailed how the prison at Guantanamo endures as a recruiting tool for al-Qaida. The White House seemingly has little idea what do about that, but the prosecution of Tsarnaev, at the very least, serves as an opportunity for the country to abide by the values it espouses. Paul seems to get this, too, telling Fox Business that U.S. soldiers overseas are fighting to protect those values. “I think they’re disheartened to think we’re just going to tell people ‘Oh, no jury trial anymore,’ so I think it is something worth standing up for,” he said. “I think of them fighting to defend the right to trial by jury.”

The legal path for Tsarnaev now is fairly clear. He’ll be represented by counsel and arraigned, just like any other criminal defendant. If he pleads not guilty, then the Obama administration’s worries may swiftly turn from making a case against him to finding a suitable and secure place to try him. Holder ran into a buzzsaw in 2009 when he proposed prosecuting 9/11 mastermind Khalid Sheikh Mohammed in Manhattan rather than Guantanamo. Among other things, a prospective Tsarnaev trial, be it in the Hub or elsewhere, likely will give the Lindsey Grahams of Washington another opportunity to vent.