ENEMY COMBATANT OR COMMON CRIMINAL?
http://online.wsj.com/article/SB10001424127887324235304578436841540252644.html?mod=us_most_pop_newsreel
Enemy Combatants in Boston
Was there a FISA order issued for Tamerlan Tsarnaev?
A row has broken out over whether the Obama Administration is violating the legal due process of Boston terror suspect Dzhokhar Tsarnaev by not reading him his Miranda rights before questioning. The more relevant question for the safety of the U.S. homeland is why the Administration has declined to designate him as a terrorist enemy combatant.
With Dzhokhar wounded and in custody and his brother Tamerlan dead, the focus is shifting to how the brothers became radicalized and whether they had links to foreign or domestic terror networks. It’s becoming clearer by the day that elder brother Tamerlan had become increasingly religious and that his motive last week was Islamic jihad against America.
U.S. officials say he spent months overseas in 2012, including time in Chechnya. When he returned, media reports say the FBI questioned him after a warning from a foreign intelligence service (presumably Russia’s). Yet the FBI appears not to have kept an eye on him, though media reports now say that within a month of returning from Russia he was posting jihadist videos on websites.
The FBI has some explaining to do, and more than merely claiming that it can’t track everyone who pops up on a foreign intelligence list. One question is whether anyone in government requested that the federal FISA court issue a warrant so Tamerlan could have his Web postings or phone calls surveilled electronically. This doesn’t mean G-men in a car following him 24-7. It means putting him into a National Security Agency program so that pro-jihad postings would be noticed.
FBI officials were clearly major sources for the Associated Press stories in 2011 that attacked the New York Police Department for its antiterror surveillance program, in part for reasons of bureaucratic competition. But in the Boston case, we only wish the NYPD had been in charge. Instead the FBI interviewed Tamerlan, then apparently lost interest or focus even as he was showing signs of radicalization, so the homegrown jihadist was able to engineer the most successful terror attack on U.S. soil since 9/11.
Which brings us to interrogating 19-year-old Dzhokhar if he recovers from his wounds. The flap over reading his Miranda rights is a largely irrelevant distraction. Under a 1984 Supreme Court decision (New York v. Quarles), police can invoke a “public-safety exception” to Miranda for a short period of time. Attorney General Eric Holder has embraced this exception as a way to show that the criminal-justice system can handle terrorists as well as the law-of-war paradigm favored by the Bush Administration.
But this is mainly for political show. The only real issue in letting Dzhokhar lawyer-up under Miranda is whether evidence gathered during interrogation can be used in court. There’s already plenty of video and other evidence linking him to the bombings.
The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful. Such a designation allows for extensive, long-term interrogation without a lawyer. Especially because President Obama has barred enhanced-interrogation techniques, such long-term psychological pressure can be crucial to learning if the brothers worked with anyone else, if they received terrorist training, and more.
This is why Senators Kelly Ayotte, John McCain and Lindsey Graham are urging the Administration to label Dkhokhar an enemy combatant. The Supreme Court has ruled that even American citizens—Dkhokhar is one—can be held indefinitely as enemy combatants. If he cooperates, the combatant designation can be revoked and he can always be transferred to the criminal-justice system for prosecution.
The Boston bombing also ought to chasten Senators Rand Paul, Mike Lee and other libertarians who keep insisting that the U.S. homeland is not part of the terror battlefield.
“It’s different overseas than it will be here. It’s different in the battlefield than it will be here,” Mr. Paul told Fox News earlier this year. “Which gets precisely to the argument I have with some other Republicans who say, well, ‘the battlefield is everywhere, there is no limitation.’ President Obama says this. Some members of my party say the battle has no geographic limitations and the laws of war apply. It’s important to know that the law of war that they’re talking about means no due process.”
Boylston Street sure looked like a battlefield on Monday, and so did Watertown on Thursday night. The artificial distinction is Mr. Paul’s focus on geography. The vital distinction for public safety is between common criminals, who deserve due process protections, and enemy combatants at war with the U.S., wherever they are.
As for due process, the greatest danger to liberty would be to allow more such attacks that would inspire an even greater public backlash against Muslims or free speech or worse. The anti-antiterror types on the left and GOP Senators who agree that the U.S. isn’t part of the battlefield are making the U.S. more vulnerable.
Americans erupted in understandable relief and gratitude on Friday with the rapid capture of the terrorist brothers. But we shouldn’t forget that their attack succeeded, with horrific consequences for the dead, the wounded and their loved ones. The main goal now is to prevent the next attack.
A version of this article appeared April 22, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Enemy Combatants in Boston.
Which brings us to interrogating 19-year-old Dzhokhar if he recovers from his wounds. The flap over reading his Miranda rights is a largely irrelevant distraction. Under a 1984 Supreme Court decision (New York v. Quarles), police can invoke a “public-safety exception” to Miranda for a short period of time. Attorney General Eric Holder has embraced this exception as a way to show that the criminal-justice system can handle terrorists as well as the law-of-war paradigm favored by the Bush Administration.
But this is mainly for political show. The only real issue in letting Dzhokhar lawyer-up under Miranda is whether evidence gathered during interrogation can be used in court. There’s already plenty of video and other evidence linking him to the bombings.
The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful. Such a designation allows for extensive, long-term interrogation without a lawyer. Especially because President Obama has barred enhanced-interrogation techniques, such long-term psychological pressure can be crucial to learning if the brothers worked with anyone else, if they received terrorist training, and more.
This is why Senators Kelly Ayotte, John McCain and Lindsey Graham are urging the Administration to label Dkhokhar an enemy combatant. The Supreme Court has ruled that even American citizens—Dkhokhar is one—can be held indefinitely as enemy combatants. If he cooperates, the combatant designation can be revoked and he can always be transferred to the criminal-justice system for prosecution.
The Boston bombing also ought to chasten Senators Rand Paul, Mike Lee and other libertarians who keep insisting that the U.S. homeland is not part of the terror battlefield.
“It’s different overseas than it will be here. It’s different in the battlefield than it will be here,” Mr. Paul told Fox News earlier this year. “Which gets precisely to the argument I have with some other Republicans who say, well, ‘the battlefield is everywhere, there is no limitation.’ President Obama says this. Some members of my party say the battle has no geographic limitations and the laws of war apply. It’s important to know that the law of war that they’re talking about means no due process.”
Boylston Street sure looked like a battlefield on Monday, and so did Watertown on Thursday night. The artificial distinction is Mr. Paul’s focus on geography. The vital distinction for public safety is between common criminals, who deserve due process protections, and enemy combatants at war with the U.S., wherever they are.
As for due process, the greatest danger to liberty would be to allow more such attacks that would inspire an even greater public backlash against Muslims or free speech or worse. The anti-antiterror types on the left and GOP Senators who agree that the U.S. isn’t part of the battlefield are making the U.S. more vulnerable.
Americans erupted in understandable relief and gratitude on Friday with the rapid capture of the terrorist brothers. But we shouldn’t forget that their attack succeeded, with horrific consequences for the dead, the wounded and their loved ones. The main goal now is to prevent the next attack.
A version of this article appeared April 22, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Enemy Combatants in Boston.
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