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Since 9/11, there have been two main schools of thought when it comes to presidential power. Some argue that the president must be able to do whatever is necessary to defend the nation–whether that means ordering secret electronic surveillance in violation of federal criminal law, unilaterally making the rules for indefinite detention without trial at Guantanamo, or authorizing the killing of U.S citizens without judicial hearing. Others argue that the president is constrained by the rule of law. In an emergency, the president can act unilaterally, subject to retroactive congressional approval. Otherwise, our constitutional system of checks and balances requires cooperation with the other branches of government. Even in the emergency scenario, when presidents must initially act without prior approval, they acknowledge that they are acting within a system of rules and limited power by seeking congressional approval as soon as possible (as Lincoln did at the beginning of the Civil War).
President Obama has not always found himself in the rule of law camp. When it comes to targeted killing, the decision to authorize military action in Libya without congressional approval, or the frequent use of the state secrets privilege to avoid accountability, in many ways the Obama administration has built on the Bush-Cheney legacy of unrestrained presidential power. With the decision to file criminal charges against Dzohokhar Tsarnaev, however, the Obama administration is getting it right.
Not everyone agrees. In a joint statement, four members of Congress, Sen. Lindsey Graham (R-SC), Sen. John McCain (R-AZ), Sen. Kelly Ayotte (R-NH), and Rep. Peter King (R-NY), said Tsarnaev “clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent.” The first claim is not true and the second is misleading. There is no evidence that Tsarneav meets the legal definition of enemy combatant (to the extent that the term itself has coherent legal meaning). Under the 2012 National Defense Authorization Act that Graham and the three other members on the joint statement all voted for, a prisoner is only eligible for indefinite detention if he is “a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” As of now, there is simply no evidence that Tsarnaev would meet this definition.
Even if that changed, and some evidence showed a tie between the younger Tsarnaev and Al Qaeda or associated forces, holding him as an enemy combatant would be a mistake. The term itself was invented as a way to support the indefinite detention system centered at Guantanamo. It was part of an effort to hold suspected terrorists without access to any court. That effort failed. The Supreme Court has ruled that even non-citizens held as enemy combatants have a constitutional right to file a petition in a federal district court seeking their release from custody as long as Congress has not suspended habeas corpus (which it has not). The Court has also ruled that U.S. citizens designated as enemy combatants are entitled to due process, which requires a hearing before a neutral decisionmaker who can determine whether they have been properly classified. It concluded that the president, acting pursuant to congressional authorization, could detain an enemy combatant outside the criminal justice system in order to keep enemy soldiers off the battlefield–however, it said, “indefinite detention for the purpose of interrogation is not authorized.”
The suggestion made by Sen. Graham and his colleagues, therefore, is as novel as it is irresponsible. There is nothing to support the idea that Tsarnaev can be held outside the judicial system, without hearing or access to the courts, for interrogation. In fact, the Supreme Court has rejected these propositions. Even if Tsarnaev could properly be classified as an enemy combatant, that would not mean that he would exist in a law-free zone.
As for the implication that trying Tsarnaev in federal court means he will remain “silent”, that too is incorrect. There are reports that Tsarnaev communicated with investigators from his hospital bed and may already have provided useful information about the bombing plot.
Boston is a city with a rich legal tradition and a long respect for the rule of law. John Adams believed that the rule of law had to apply to everyone–even those who are despised and accused of horrible crimes. Adams defended British soldiers who had killed five colonists in the 1770 Boston Massacre. He understood that there was no point to living in a lawless society. Extending the rule of law to Dzohokhar Tsarnaev is not a sign of weakness, it is a sign of strength. In responding to the threat posed by terrorism, there are many things we cannot control, but there are some we can. We can decide whether we will remain a nation of laws. The decision to place Tsarnaev in the criminal justice system is a good one. President Obama ought to continue to reject calls to designate Tsarneav as an enemy combatant.
Chris Edelson is an assistant professor in American University’s School of Public Affairs, Department of Government, where he teaches classes on constitutional law. He’s also a lawyer and has published writing in the Philadelphia Inquirer, Washington Lawyer, Common Dreams, firedoglake.com, and Metroland (Albany, NY).