Reports that the Obama administration has already rejected treating the younger Tsarnaev as an enemy combatant show how its ideological commitments have forced it to rush to a judgment that may damage our national security. The government can of course treat Tsarnaev as a criminal suspect; that is a shut-and-closed case. But it also has the option of treating him as an enemy combatant if it believes that he is linked to al-Qaeda or other foreign terrorist groups.
Only far-left places like the New York Times editorial page willfully blind themselves to the existence of Supreme Court precedent, such as Ex Parte Quirin from World War II, or even Hamdi v. Rumsfeld in 2004, which holds that the government can detain as combatants even American citizens if they have joined with the enemy.
The main difference is that treating Tsarnaev as an enemy combatant allows for detention without the immediate need to provide him with a Miranda warning, the right to remain silent, or a civilian jury trial. Like any enemy combatant, Tsarnaev can be questioned for lengthy periods of time and can be held without trial until the end of the conflict. There is a “public safety” exception for Miranda warnings, but it is quite limited and ends when there is no longer any pressing threat of harm from other attacks or crimes — and it has now been four days since Tsarnaev’s capture and a week since the marathon bombing.
I agree that treating an American citizen as an enemy combatant is an extraordinary step. But it is an option. What is disturbing is that President Obama and Attorney General Holder are so in the grips of their ideological belief that terrorism is a law-enforcement, rather than military, problem that they made this decision with insufficient information. Tsarnaev cannot even talk currently, because of his gun-shot wounds. Obama and Holder cannot yet be certain that the Tsarnaev brothers did not have ties to al-Qaeda or other foreign terrorist groups — only after our intelligence officers have questioned Tsarnaev can they make an informed decision about whether to send him to the brig or to jail.
To do otherwise — to find Tsarnaev a simple criminal suspect — without even questioning him and gathering more information is to elevate ideology over national security.