4/21/13

An enemy combatant

Some of the GOP Congresscritters are wanting to have Dzhokhar Tsarnaev declared an enemy combatant. That means that Dzhokhar Tsarnaev can be detained, denied the rights inherent in US citizenship.

Those GOP Congresscritters are Lindsay Graham, John McCain, and Kelly Ayotte.

But like it or not, Dzhokhar Tsarnaev is in fact a US citizen.

The 'enemy combatant' thing is really blurry, but one thing is clear - it has heretofore not been a status applied against a US citizen for crimes committed on US soil.

Following a number of court cases and rulings, we find this definition of 'enemy combatant' in the 2004 Rules for Combat Status Tribunals:

‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.

Tsarnaev so far does not meet any of the requirements of that definition. So far, Tsarnaev has committed murder and felonious assaults against a number of people, within the state of Massachusetts.

It may come to pass that there is a direct link between Tsarnaev and some external 'enemy combat forces,' but so far it isn't there.

Then we have 'lawful enemy combatants' and 'unlawful enemy combatants.' These are defined by the Military Commissions Act of 2006:

 "The term 'unlawful enemy combatant' means —
        (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or
        (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

    "The term 'lawful enemy combatant' means a person who is —
        (A) a member of the regular forces of a State party engaged in hostilities against the United States;
        (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
        (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."


But after that, we have Boumediene v. Bush, 553 U.S. 723 (2008). That's the one in which the US Supreme Court held that the Military Commissions Act was unconstitutional in that it restricted or denied detainees' use of habeas corpus and access to the federal court system. In that case, the court ruled that detainees could have access to the federal courts, and could submit petitions of habeas corpus, and restored the protection of the Constitution.

The Military Commissions Act was amended in 2009 to reflect the findings in Boumediene v. Bush. Nonetheless, the ACLU noted that the act still falls short of providing the protections of the Constitution.

You can say what you wish about the ACLU, but consider that we now have at least three US senators calling for  a US citizen, who has committed crimes on US soil (let's skip the 'allegedly'), to be essentially denied those Constitutional rights.

How does Tsarnaev's citizenship status affect all this? So far, I have not heard any sensible discussion on that.What I am hearing is three US senators - Republicans - calling for a declaration before the blood at the various crime scenes has even congealed. Aren't these the guys who have done so much complaining about 'knee jerk' emotional reactions by the Obmananians?

These people need to get a grip. Tsarnaev isn't going anywhere. A knee-jerk reaction here can easily lead to policies and practices that assault our Constitutional rights far more than ill-conceived background checks for gun sales.

I believe our criminal justice system is well-suited for handling Tsarnaev as it stands. Our 'tribunal' of senators needs to get a collective grip, and put their jackboots away.