Sen. Lindsey Graham (and some of his colleagues) would like to treat Dzhokhar Tsarnaev as an “enemy combatant”:
The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.
The suspect, based upon his actions, clearly is a good candidate for enemy combatant status.
This line of reasoning, of course, is stupid in the extreme. If one had to be motivated by “profit” to commit a crime, domestic abuse, DUI, rape, and most murders would not be crimes. If the threshold for being an enemy combatant is a desire to “injure, maim, and kill innocent Americans,” then Ted Bundy, John Wayne Gacy, OJ Simpson, and Eric Harris and Dylan Klebold were “enemy combatants.”
It doesn’t even make much sense to consider politically motivated killers “enemy combatants,” unless there’s some evidence that they are connected to a larger organization or a foreign power. Eric Rudolph and Ted Kaczynski and Timothy McVeigh were all politically-motivated. But treating them as “enemy combatants” would have been pointless and dumb in the extreme — not to mention feeding their grandiose view of themselves.
Moreover, Sen. Graham cites Hamdi v. Rumsfeld as authority for the proposition that the U.S. may declare its citizens “enemy combatants” at will:
American citizens who take up arms against our nation or collaborate with our enemies have been held as enemy combatants. This is well-established principle of American jurisprudence and authorized by congressional statute. (“There is no bar to this Nation’s holding one of its own citizens as enemy combatant.” — Supreme Court decision Hamdi v Rumsfeld)
But Senator Graham misuses Hamdi in at least three important ways.
First, the opinion he cites to is a plurality opinion, not a majority. That is, it is an opinion cosigned by four justices (written by Justice O’Connor), but it is not the opinion of the Court and it does not bind lower courts or the Supreme Court itself. To cite to a single sentence of a plurality opinion as a “Supreme Court decision” is grossly misleading. Whether intentionally or ignorantly I cannot say, but once upon a time Sen. Graham was a practicing Air Force JAG, so you tell me which is more likely.
Second, Hamdi‘s ultimate holding, agreed upon by eight justices, was that the military’s detention of Hamdi was unlawful. The plurality felt that he could be detained as an enemy combatant but had to be given better due process, while Justice Souter and Ginsburg felt that detention of citizens as enemy combatants had not been authorized by Congress, but joined in the judgment to “give practical effect to the conclusions of eight members of the Court rejecting the Government’s position.” Justices Scalia and Stevens, on the other hand, felt that indefinite, non-criminal detention of American citizens as “enemy combatants” was simply forbidden by the Constitution. Hamdi, in other words, shows a Court that is highly divided on the particulars but almost uniformly uncomfortable with due-process-free detention of American citizens.
Third, I think it’s likely that Justice O’Connor’s opinion is simply wrong in some way. Five justices thought so, for different reasons. (I believe Justice Scalia had the best argument: American citizens captured on the battlefield, unlike their alien counterparts, must be tried for treason or some other crime, or released.) But even giving Justice O’Connor the benefit of the doubt and assuming for a moment that her opinion captures the law accurately, it is inapposite to the case at hand.
Justice O’Connor’s opinion goes to some lengths to establish exactly what she means when she says that the government may “hold one of its own citizens as enemy combatant.” First, the opinion relied heavily on the fact that Hamdi was captured “in a foreign combat zone.” Justice O’Connor distinguished Ex parte Milligan, a Civil War-era case denying a military commission jurisdiction over an Indiana citizen who conspired to deliver munitions to the Confederacy and liberate Confederate POWs, by pointing out that in that case, “Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there . . . . Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different.”
She also limited the definition of “enemy combatants” to those who “associate themselves with the military arm of the enemy government”1 or who are “part of or supporting forces hostile to the United States or coalition partners.” None of that is in any way shown here. We don’t know what the Tsarnaev brothers’ motives were yet, nor is there even any plausible reason to think we know.
Where a citizen is rounded up in the company of armed enemy belligerents on a foreign battlefield, we may entertain a (rebuttable) presumption that he has chosen to “associate” himself with the “military arm of the enemy.” But where he has committed an act of violence on domestic soil, with no evidence that the act was at the behest of a foreign enemy, that presumption cannot possible stand. Indeed, Justice O’Connor took pains to say that there must be evidence that the detainee is actually connected to enemy forces: “To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant . . . .” Which is to say, “enemy combatant” is a technical term carrying certain factual antecedents. It is not a label we stick onto certain detainees at will. Unless Sen. Graham knows a great deal more than the rest of us, he’s (at a minimum) jumped the gun here. (Which suggests that he doesn’t much care whether Tsarnaev is actually an enemy combatant — more on that at the end.)
Finally, Sen. Graham claims to want to classify Tsarnaev as an enemy combatant in order to extract intelligence from him:
[W]e have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect.
We should be focused on gathering intelligence from this suspect right now that can help our nation understand how this attack occurred and what may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete.
As mentioned above, this would seem to be premature, since we don’t actually know that Tsarnaev is an enemy combatant.
But more to the point, this is precisely what even O’Connor’s opinion forbids. “Certainly,” she writes, “we agree that indefinite detention for the purpose of interrogation is not authorized.” And: “An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.” And, she says, the sole purpose of holding a citizen as an “enemy combatant” would be to keep off the battlefield soldiers who “might, if released, rejoin forces fighting against the United States.”
But the choice here is not between releasing Tsarnaev and detaining him; the choice is between two forms of detention. The whole reason the government needs the authority to detain enemy combatants in the first place is because, if they are merely fighting against the United States in wartime, they haven’t committed a crime, and so can’t be detained on those grounds. Where an American citizen has simply joined the ranks of the enemy, that rationale is already dubious; as Justice Scalia points out, he can be detained and tried for treason. But where an American citizen is suspected of having committed murder on American soil, the rationale falls apart even further. To return to the present case: If Tsarnaev committed the bombings, he will be imprisoned for the rest of his life. If he did not, then — absent some forthcoming evidence that he trained at a camp in Pakistan — he hasn’t become part of “forces hostile to the United States”.2
Sen. Graham knows all this — as I said, he was an Air Force JAG, and he also serves on the Judiciary Committee. Whatever else he is, I can’t imagine he’s ignorant of the broad outlines of the law. So why is he doing this?
I suspect it’s a cheap political trick. Feelings are running high right now, and Graham wants to capitalize on some of the anger many Americans feel toward the perpetrators of this terrible crime. He wants to paint himself as the hard man of the world who won’t let little things like civil liberties or due process keep him from doing what has to be done to keep America safe from posited “future attacks.” The (mostly) unstated inverse premise, of course, is that the President is not a hard man of the world willing to do whatever it takes. He’s calling the President a pussy.
And he’s doing it in a particularly safe, cost-free way. He knows that Tsarnaev will actually get plenty of due process, that he’ll get a lawyer and mount a defense, and that eventually many, many more facts will come out about this case. And if the Tsarnaevs turn out to be, not Agents of an Evil Power, but, as their uncle believes, “losers” with no real plan — if they turn out to be James Holmes or Harris & Klebold or Jared Loughner — Graham will pay no real political price for having said this. The impact is all in the moment — he gets his name associated with “toughness” in the minds of people angry about the bombing, and he gets to insinuate that the President is a weak-kneed, tea-drinking pansy. And if the factual antecedent of his ridiculous demand turns out not to be true, no one will remember, and he will pay no penalty.
1 There is, of course, the separate question of whether affiliation with an international terrorist organization ought to count as anything like the same thing as affiliation with an enemy government. I’m inclined to say it shouldn’t, but I recognize that reasonable minds differ and the line between state and non-state actors is far from clear in some of our current conflicts. I also recognize that this argument is largely lost.
2 He may — or may not — harbor anti-American sentiments. But that is not, in and of itself, illegal. One may sympathize with Al-Qaeda all day long without joining their ranks.