So, will Rand Paul, Mike Lee, and Dianne Feinstein go to bat for Dzhokhar Tsarnaev?
In December, with many conservatives cheering him on, Paul (R., Ky.) railed against the “abomination” of designating American citizens as enemy combatants — i.e., detaining them indefinitely outside the civilian criminal-justice system. Mike Lee (Utah), a conservative favorite, was his principal Republican partner in the Senate effort.
In fact, Lee joined San Francisco lefty Dianne Feinstein (D., Calif.) in proposing an amendment to the National Defense Authorization Act (NDAA) that would emphatically have prohibited the military detention on U.S. soil of any American citizen. The Feinstein-Lee amendment was backed by Paul, plus GOP “moderates” Susan Collins (Maine), Mark Kirk (Ill.), and Dean Heller (Nev.), and a gaggle of liberal Democrats: Kirsten Gillibrand (N.Y.), Mark Udall (Colo.), Jon Tester (Mont.), Chris Coons (Del.), and Frank Lautenberg (N.J.). By the time the amendment got to the Senate floor, it had overwhelming support, passing by a vote of 67–29.
When the DNAA got to the House-Senate conference-committee stage, however, a maneuver engineered by Senator John McCain (R., Ariz.) stripped the amendment out of the final version. That prompted Paul’s tirade, in which he further intimated that racial animus was behind the move. Alluding to Japanese internment, he declaimed, “Will America only begin to regret our loss of trial by jury when the people have names like Smith and Jones?”
Urging that national-security law be based on hypotheticals unacquainted with our current reality has become a familiar demagogic practice. Paul and his allies — primarily Lee and Senator Ted Cruz (R., Texas) — used in it March, when Paul conducted his now-famous filibuster over the imaginary problem of U.S. drone missiles’ being fired at American citizens inside our country. In browbeating Attorney General Eric Holder at a Judiciary Committee hearing, Cruz sought to illustrate the purported peril to Americans by posing what he portrayed as a likely drone-attack situation: an American citizen, suspected of terrorist activity based on skimpy intelligence, who is merely “sitting at a café,” posing an imminent danger to no one.
Down here on Planet Earth, though, when real security emergencies arise, calling for excruciating decisions about the use of force and detention without trial, you don’t get ambiguous suspects who have names like Smith and Jones, just sitting and minding their own business at the local café.
You get Dzhokhar Tsarnaev.
In a perversely ironic twist, Tsarnaev became a naturalized United States citizen last September 11 — the eleventh anniversary of al-Qaeda’s mass murder of nearly 3,000 Americans and the very day a swarm of his fellow jihadists carried out the Benghazi massacre in which four Americans, including our ambassador to Libya, were killed.
Tsarnaev and his older brother, Tamerlan, were more likely to blow up the café than order up a cappuccino. And the intelligence about them was not ambiguous — or at least it wouldn’t have been if the FBI brass’s politically correct blinders did not severely discourage the deduction that adherence to Islamic-supremacist ideology could well make a young Muslim a danger to the United States.
Two years ago, at the behest of a foreign government (almost certainly Russia), the FBI investigated Tamerlan Tsarnaev over his ties to “extremist groups” in Chechnya. In connection with that probe, the feds discovered that the Tsarnaev family had deep roots in Chechnya and Dagestan, where separatist revolts against Russia have been coopted by brutal Islamic supremacists since al-Qaeda took the jihad global in the late 1980s. Tamerlan is named after a legendary jihadist warrior and Dzhokhar after a heroic leader of the breakaway Chechen republic — Dzhokhar Dudaev, killed by a Russian missile in 1996.
By the time the FBI conducted its investigation in 2011, the then-24-year-old Tamerlan was known to have traveled to hubs of the jihad in the Northern Caucasus and to have surfed the Web in the U.S. for jihadist sites. Depending on how deeply they dug, the agents might well have learned that Tamerlan’s affinity for jihad extended to his YouTube playlists, one of which was called “Terrorists.” They might also have discovered his enthusiasm for Sheikh Feiz Mohammed, who demands the imposition of sharia, urges the killing of anyone who “degrades” Islam, calls Jews “pigs,” and opines that women who dress in Western fashion have only themselves to blame when they are raped.
There are indications that the feds knew most, if not all, of this information. Yet the government did not exactly fire up the drone or cart Tamerlan, a green-card holder previously arrested for roughing up his girlfriend, off to the nearest military brig. After interviewing him, the bureau closed the file, citing “no derogatory information.” No, of course not.
Last week, the brothers Tsarnaev bombed the finish line at the Boston Marathon, killing three young people (including an eight-year-old boy) and maiming over two dozen others. They were far from done. In the bloody manhunt that finally resulted in Tamerlan’s death and Dzhokhar’s capture, they killed one security guard, critically wounded a police officer, shot and tossed explosives at the law-enforcement agents hotly pursuing them, planted booby-trap bombs, pulled off a robbery and a carjacking, and managed to shut down a petrified major American city for a day.
The capture of Dzhokhar Tsarnaev has revived the debate over the post-apprehension treatment of terrorists: Are they enemies to be treated under the laws of war or criminal defendants entitled to all the protections of the civilian criminal-justice system? I would expect the libertarian and leftist crusaders for civilian due process to lay low, for two reasons.
First, we are not talking fanciful hypotheticals now; we are talking about the reality of the jihad in a nation where, as John Fonte and John O’Sullivan contend (citing an important new Hudson Institute research paper by Fonte and Althea Nagai), our patriotic assimilation system is broken. Beyond the 12 to 20 million illegal aliens to whom the ruling class is hell-bent on granting legal status despite the government’s utter failure to enforce the law and address border security, we no longer assimilate legal aliens into a love of our country and its culture before naturalizing them.
With the Muslim Brotherhood having adopted a rigorous anti-assimilation strategy of creating sharia enclaves in the West, and with such prominent Islamic-supremacist politicians as Turkey’s prime minister, Recep Tayyip Erdogan, urging Muslim immigrants that assimilation is a “crime against humanity,” Islamic aliens are among the most resistant. The fact that many Muslim immigrants become American citizens hardly means that they see themselves as Americans. Too many see themselves as part of the ummah — the global community of Muslims that sharia jurists tell them is at war with Western civilization.
Second, the debate over detaining American citizens as enemy combatants will, in this instance, be a short one. Despite his jarringly inconsistent preference for killing (rather than capturing) suspected al-Qaeda operatives found overseas, President Obama is committed to a policy of treating terrorism as a crime that, in all circumstances, is fit for ordinary prosecution — meaning, full civilian due-process rights for all arrested terrorists. Indeed, he signed the NDAA under protest, clearly preferring the position of Paul, Lee, Feinstein, et al., that American citizens must never be detained without trial. If there is any meaningful interrogation of Dzhokhar Tsarnaev, it will be rationalized by the “public safety” exception to Miranda that applies in the civilian justice system. The Obama administration is committed to winding down the Bush counterterrorism approach, not reaffirming it in connection with jihadist atrocities committed inside our borders.
None of that will matter much. We mulishly continue to avoid coming to grips with the straight-line nexus between Islamic-supremacist ideology, which is firmly rooted in literal, authoritative Muslim scripture, and the threat to the United States. As long as willful blindness remains entrenched, the nation will remain vulnerable no matter which detention and prosecution protocols are used.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.