Doctors say that suspected Boston bomber Dzhokar Tsarnaev is "unable to speak" due to his injuries, and he has yet to be formally arraigned. But shouldn't we take advantage of this momentary lull in the action so we can deprive Tsarnaev of his rights as a U.S. citizen? Why should we wait for the civilian courts to mete out justice when we'd all just feel a lot safer if he sat in a cell on an island and slowly faded away? To the consternation of Truck Nutz aficionados and elected officials nicknamed after a mediocre '80s comedy, Dzhokar Tsarnaev is unlikely to be treated as an enemy combatant. Here's why.
What the hell is an "enemy combatant?"
The term "enemy combatant" exists because the Bush administration needed a Goldilocks Solution to the very bad people who would later be detained in the War on Terror. They couldn't be afforded the rights of "prisoners of war," because they'd be immune from crimes they committed during a war that we never officially declared. They couldn't be afforded access to the United States' civilian court system either, because sometimes America did very bad things to these very bad people, and that wouldn't fly in open court.
So "enemy combatant" allowed the Bush administration to extract information from these "belligerents" and indefinitely detain them. The legal porridge was juuuuuust right. The Supreme Court allowed all this to happen, and America was Safe.
But by 2008, the courts were very clear on who could be considered an "enemy combatant." Federal Judge Richard Leon, appointed by President Bush, provides [PDF] this widely accepted definition of "enemy combatant":
An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Yesterday Republican Senators John McCain, Kelly Ayotte, and Lindsay Graham (along with pulp novelist Peter King) released a statement claiming that “[Tsarnaev], based upon his actions, clearly is a good candidate for enemy combatant status." Dictating this between sips of a peaty Scotch probably felt pretty good, but it's simply not true.
Unless Tsarnaev, who was eight years old at the time of the September 11 attacks, has some credible link to al Qaeda or another terrorist cell related to those enumerated in Authorization for Use of Military Force Against Terrorists that was passed in 2001, it's unlikely any court would allow this designation for very long. Even Supreme Court Justice Antonin Scalia has forcefully argued [PDF] that an American citizen cannot be named as an "enemy combatant."
Besides, it's unclear what designating Tsarnaev as an "enemy combatant" would do to help prosecute him, besides discredit a perfectly capable civilian justice system, debase the Constitution, allow for questionable interrogation tactics, make Tsarnaev a point of propaganda for terrorist organizations, and extrajudicially subject Tsarnaev to cruel and inhumane punishment.
The Senators say that not doing it "could very well be a national security mistake." Several of their colleagues seem to disagree. Anyway, the Obama administration officially retired the term "enemy combatant" in 2009, which surely made all the prisoners in Guantanamo Bay very happy.
Why is it OK that Tsarnaev hasn't been read his Miranda rights? Pretty sure Detective Brisco said that's not allowed.
Detective Brisco is correct, except in instances of grave danger when authorities need potentially life-saving information. As the FBI's own legal expert explains, the exception was carved out in 1984, when an NYPD officer had to ask a rape suspect where his firearm was so that he couldn't injure anyone. An imminent threat had to exist in these exceptions to Miranda—we're talking minutes, not days.
But after 2001, this exception was given an elasticity due to terrorism concerns. The "underwear bomber," Umar Farouk Abdulmutallab, was interrogated in 2009 for 50 minutes before he was Mirandized and promptly asked for a lawyer. The would-be Times Square bomber, Faisal Shazad, was also interrogated without being Mirandized.
In 2010, the Justice Department issued a memo to the FBI stating that "there may be exceptional cases" in which authorities might have exhausted questions related to public safety, and keep asking the suspect questions about any old thing. In these cases, the DOJ wrote, "the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation."
Still, statements made without a Miranda warning are not admissible at trial in a case against a suspect.
Legal analyst Jeffrey Toobin makes an interesting, if obvious observation before silencing his ringing cellphone on air: "Even if he doesn't get Miranda warnings, he may decline to answer questions. In any case they can't force him to answer questions."
To this point, we'll write the Senators' response for them: Oh yeah? We'll see about that.