Why Dzhokhar Tsarnaev Cannot Be Held As An Enemy Combatant

Senator Lindsay Graham and other conservatives continue to push for the surviving Boston Marathon bombing suspect, Dzhokhar Tsarnaev, to be transferred to military custody and held as an enemy combatant. The use of the military in response to terrorism is a familiar refrain for Sen. Graham, but in this case not only would that be the wrong policy choice, recent Congressional legislation unequivocally excludes Tsarnaev from the category of individuals eligible for detention as an enemy combatant.

Federal criminal charges filed against Tsranaev on Monday have not deterred Sen. Graham from his cause, taking to the Senate floor on Tuesday to argue that “the surviving suspect — due to the ties that these two have to radical Islamic thought and the ties to Chechnya, one of most radical countries in the world — that the president declare preliminarily that the evidence suggests that this man should be treated as an enemy combatant.”

Leaving aside the dangerous claim that an American citizen captured in the United States by law enforcement personnel should be held in indefinite military detention without charge or access to an attorney, a glaring flaw in Sen. Graham’s case is that the 2012 National Defense Authorization Act (NDAA) prohibits Tsarnaev’s designation as an enemy combatant, something that Sen. Graham should know very well because he voted for it just 18 months ago.

The NDAA established Congress’ view on the parameters for who is detainable as an enemy combatant in the fight against al Qaeda. For a person to be held as an enemy combatant, they must either have “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks;” or have been, “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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Tsarnaev obviously did not have any connection to the 9/11 attacks, and law enforcement and intelligence officials have uncovered no connections between the Tsarnaev brothers and any terrorist organization or group, let alone al Qaeda or a group associated with it. The surviving bombing suspect’s statements to interrogators are reportedly consistent with these findings and indicate that the bombers acted without guidance, support, or direction from any terrorist organization. Simply having “ties to radical Islamic thought” and Chechnya is not sufficient to render Tsarnaev eligible for detention as an enemy combatant.

The criminal justice system is where Tsarnaev belongs and it has a long and successful track record in handling these cases, locking up literally hundreds of terrorists and obtaining intelligence that has helped prevent future terrorist attacks. For example, Bryant Vinas, an American citizen who plead guilty to charges of material support for terrorism, produced what one intelligence official called a “treasure trove” of information about al Qaeda, and allowed US officials “to peer deeper inside the inner workings of al Qaeda.” In another, David Headly admitted his guilt in involvement in the 2008 attacks in Mumbai and cooperated with prosecutors and supplied the information that helped uncover a Lashkar-e-Taibi plot attack a Danish newspaper in retaliation for printing cartoons depicting the prophet Mohammed.

Despite Sen. Graham’s best efforts, there really is no debate; Tsarnaev cannot be held as an enemy combatant. And even if there were, our criminal courts have proven to be a better system to handle terrorism cases than military detention.