Sorry, Lindsey Graham, Dzhokhar Tsarnaev Is No "Enemy Combatant" 22APR13

OUR civil liberties must  not be sacrificed in the name of national security. Our system of justice was created to provide just that, justice, and is not served by those who would take away our rights and freedoms in the name of national security. We would do well to remember the words of Benjamin Franklin....

dzhokhar tsarnaev is an American, albeit an evil American, he is still a citizen, and entitled to the civil liberties and rights of all Americans. That is what makes us better than most of the rest of the world, and we should not allow his heinous crimes to be used to take these rights and liberties from the rest of us. Thank you Federal Judge Marianne Bowler for having the moral courage to do follow the law! From Mother Jones and Crooks&Liars.....

—By Adam Serwer

| Mon Apr. 22, 2013 8:40 AM PDT

Boston bombing suspects Dzhokhar and Tamerlan Tsarnaev in an image taken at the Boston Marathon. fbi.gov

Update: White House press secretary Jay Carney said Monday afternoon that Dzhokhar Tsarnaev would not be held as an "enemy combatant." President Barack Obama has previously stated that he "will not authorize the indefinite military detention without trial of American citizens." The US Attorney's Office-District of Massachusetts confirms that "Dzhokar Tsarnaev [is] charged with conspiring to use weapon of mass destruction against persons and property in [the] U.S. resulting in death[.]"

Before Dzhokhar Tsarnaev, the surviving suspect in the attack on the Boston Marathon, was even captured, Sen. Lindsey Graham (R-S.C.) wanted the the 19-year-old be held in indefinite military detention as an "enemy combatant."

"If captured, I hope [the Obama] Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes," Graham tweeted last Friday.In an interview with the New York Times' Charlie Savage over the weekend, Graham, who is up for reelection in 2014, elaborated on his reasoning:

You can't hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda—I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn't hold him for intelligence-gathering purposes, that would be unconscionable."

Graham is wrong. The government cannot hold Dzhokhar Tsarnaev as an enemy combatant. Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily. The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "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." There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al Qaeda, the Taliban, or associated forces. Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs. 

"It's actually not a close question," says Ben Wittes, a scholar with the Brookings Institution and writer at the national security blog Lawfare who supports military detention under some circumstances. "'Substantially support' is a reference to providing some material aid to the forces of the enemy…It means giving active aid to the enemy forces, it doesn't mean taking independent action that happens to be congenial for them."

Even if evidence emerges that the suspects in the Boston bombing acted with the support of or at the behest of a foreign group, the Supreme Court has not settled whether the military can detain people who are apprehended in the United States. Both the Bush and Obama administrations dodged potential Supreme Court cases that would have decided that question, precisely because the odds are good that holding someone suspect of a crime who is arrested on American soil in military detention is unconstitutional. Having the military detain someone captured on US soil could also jeopardize prosecution: In the three cases where Americans or legal residents have been held in military detention, those suspects got lighter sentences than they probably would have otherwise, Wittes says.

Graham has said he wants Tsarnaev held in military detention so the suspect won't "lawyer up." In other words, Graham would like to deprive Tsarnaev of his constitutional rights before he's even been charged with a crime, let alone convicted of one. 

"We live in a system where there's a Sixth Amendment," says Wittes. "There's a reason why we have that right, and I can't do anything about it and I don't want to."

Reporter

Adam Serwer is a reporter at the Washington, DC, bureau of Mother Jones. For more of his stories, click here. You can also follow him on Twitter. Email tips and insights to aserwer [at] motherjones [dot] com. RSS | TWITTER

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  http://www.motherjones.com/mojo/2013/04/lindsey-graham-dhozkhar-tsarnaev-enemy-combatant
  
  

  April 26, 2013 06:00 AM

  Oh Noes! Federal Judge Intervened, Insisted On Miranda Rights

  By emptywheel

  
  

  
  Fox News bobbleheads were hyperventilating about this yesterday.
  It turns out Obama’s DOJ has not discovered new respect for accused rights since holding Manssor Arbabsiar and Faisal Shahzad two weeks without seeing a judge or lawyer after all. Rather, the magistrate who signed the complaint Sunday night made the decision on Saturday.
  

  A federal judge made the call to advise the Boston bombing suspect of his Miranda rights, even though investigators apparently still wanted to question him further under a public-safety exception.
  [...] The judge first told the Justice Department on Saturday she intended to read Mr. Tsarnaev his rights on Monday. One U.S. official said the judge cited the intense television coverage of the capture as one reason for initiating the criminal prosecution.

  Kudos to Judge Marianne Bowler for the courage to stand by the law.Meanwhile, the Members of Congress who learned about this yesterday were outraged Article II didn’t tell Article III to fuck off. Mike “Like he was J Edgar Hoover” Rogers even wrote Eric Holder about it (as if Holder had sway over Bowler).
  

  House intelligence committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday that Justice officials should have pushed back on the judge’s plans. He wrote to Attorney General Eric Holder late Wednesday to register his concerns. ”What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively they may have jeopardized our ability to get public-safety information.”
  [...] The revelation came late Wednesday at a briefing before the House intelligence committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official.
  Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official recounted.
  The answer stunned many of the lawmakers in the room. “The whole tenor in the room changed,” the official said.

  Remember, by the time Bowler read Dzhokhar his rights, multiple government witnesses were leaking publicly that the government was convinced there was no imminent threat, the entire point of the public safety exception. No one was even pretending this was about public safety anymore.
  Nevertheless, the House Intelligence Committee is outraged — outraged!! — that a judge did her job.
  http://crooksandliars.com/susie-madrak/oh-noes-federal-judge-intervened-insi