Are the Boston Bombers unlawful enemy combatants?

G.O.P. Lawmakers Push to Have Boston Suspect Questioned as Enemy Combatant

Though some have called for it to be rescinded, it has not been.

I refer to the congressional authorization for the use of force against the perpetrators of 9/11, passed on September 14, 2001.

It reads in pertinent part,

[T]he President is authorized to use all necessary and appropriate 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Nobody else is covered by the resolution in question.

And it doesn’t seem to cover the Boston Bombers,since there is no apparent tie between them and al-Qaeda.

That quoted text does not put the US in a state of war with regard to any and all terrorists, or even just any and all Muslim terrorists.

Not even those who attack the US.

Hence Charlie Savage, author of the Times piece, is quite right in his first two sentences here.

But while the suspect, Dzhokhar Tsarnaev, a naturalized American citizen, is a Muslim, there is no known evidence suggesting that he is part of Al Qaeda.

The United States is engaged in an armed conflict with Al Qaeda, not all Muslim extremists.

As a result, the dispute is pushing beyond familiar arguments and into new territory.

He is wrong in the third.

The dispute arises from the demands of some Republican senators who either mistakenly believe any Muslim terrorist is covered by that resolution or merely desire the government to behave as if that were so.

But the president can no more lawfully declare these two to be enemy combatants than he could a Swedish bank robber or an American Christian murderer of abortion doctors.

There simply is no relevant or enabling law, although it is an interesting question whether congress might create something to suit the purpose, and whether an attempt at application to these guys would run afoul of the ex post facto provision.

And while it may well be true that these two, as good Muslim loons, thought of themselves as at war with the US, that does not make it so.

It is interesting that Graham appears to understand and accept that the resolution does not extend to all Muslim terrorists.

But do his quoted remarks show he thinks it does at least cover non-al-Qaeda Muslims who “fight with al-Qaeda”?

Given that a declaration of war against a given nation is not sufficient to establish a state of war against any or all of its allies, I would have to suppose he is mistaken.

Even the then government of Afghanistan and the Taliban who ran it are covered only as being respectively a harboring and aiding nation and an aiding organization.

Besides, even that sort of connection is a bit of a stretch, given the two, though ethnic Chechens and Muslims, were not part of any organization of Chechens fighting with al-Qaeda, nor were they as individuals fighting with al-Qaeda.

Graham is right that such a connection might turn up, of course; but it does not follow it is lawful to treat them as if it had been established, pending exoneration.

That seems a little too like treating your suspected bank robber as guilty until proven innocent, no?

And as for that 30 day time limit for treating the kid as an unlawful combatant while the government checks to see whether he actually is one, well, he just made that up, didn't he?

It's not law.

None of which is to say special questioning without a lawyer and without mirandizing the suspect as the administration intends is not appropriate or permissible.

It does not rely on any supposition that the Bomber is actually a detained combatant, but only that public safety requires interrogation for the purpose of preventing further harm.

As I understand it, what is related by the detainee to interrogators in such special questioning - an invention, in fact, of President Obama - is understood from the outset to be unavailable for use against him in a trial.

It is this, the administration supposes, that obviates the need to mirandize and removes the (alleged) constitutional requirements that a suspect (a) cannot be questioned, if he so wishes, out of the presence of his attorney and (b) cannot be interrogated at all if he chooses to remain silent.

The ACLU, I understand, has protested even that concession to the special needs of a terrorism situation.

But the administration can, I think, rely on the public safety exception in the 1984 Quarles ruling of the Supremes.

In that case, evidence obtained at the very time of the arrest from a detainee who had not been mirandized was ruled admissible in court because of a public safety need for such immediate questioning.

In several other cases use for prosecution of evidence obtained through admissions of an unmirandized detainee without the presence of counsel have also been allowed under the plea of public safety.

In some recent terrorism cases, the Obama administration has delayed mirandizing and denied access to counsel, but apparently not attempted to use information thus gained for purposes of prosecution.

And that is what they want to do, here.

They want to get information in questioning that from the git-go will be, they say, excluded from such a use, to satisfy the special public safety needs of a terrorism related case.

But it may be that by the time the kid is able to talk, if that ever happens, that particular window of opportunity might be considered by a court to have closed.

The administration may say that given there is no question of using admissions for prosecution there is no reason to insist on the window being of short duration, for situations of immediate necessity, only.

But it is not clear a court would buy that.

I would prefer they did.

That doesn't mean they will.