Boston Bomber: Enemy Combatant or Criminal?

Now that Tsarnaev has been captured, the US government is faced with the question of what to do with him. One of the fundamental issues the government faces is whether the it will consider him an "enemy combatant" or a "criminal". Additionally, how should the government proceed in the interrogation of Tsarnaev? Should we give him Miranda warnings?

As a jumping off point, my Senator (Lindsey Graham) issued three statements via Twitter. The first:

“The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans,” the senators said. “We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

Ok. I think that trying to draw the distinction between an act of terrorism and a "common crime" is a problematic idea. It's a false distinction  to differentiate criminals seek to profit from a "criminal enterprise" and terrorism. Just because a crime isn't a profitable criminal enterprise does not make it terrorism. There's a reason that we make terrorism a crime, right?

Also, who's to say Tsarnaev didn't "profit" from the bombing? He did achieve his goal; i.e. detonating a bomb and killing/injuring people. It's just too difficult to distinguish Tsarnev's act from other crimes where there may not be an easily ascertainable "profit". Obviously, bank robbers profit, but what about rapists, arsonists, or serial killers? Is "profit" different than "motive"? As an example: does a DUI driver "profit" from his crime? He doesn't really.

However, I agree with Senator Graham in that we need to know about future possible attacks. That's actually the most important thing we need to know. In fact (from the government's point of view) there's not much that Tsarnaev needs to tell the government other than information that can help prevent future acts of terrorism. We don't need him to confess to the bombing. There's a mountain of evidence to convict him in a civilian court that is independent of any confession. In fact he's already confessed to the person he carjacked. Accordingly, the government doesn't need his confession.

Graham's second Tweet starts to develop this idea:

"Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks."

Now Graham is talking about holding him as an "enemy combatant" who is not entitled to Miranda or counsel. Miranda doesn't concern me. Depriving him of counsel does.

When you detain an enemy combatant, the idea is that you're preventing him from doing further harm because you have no other options besides (1) Killing him; and (2) letting him go. Here, I don't see that being an issue. The US can hold Tsarnaev on his federal charges. He's not a soldier we captured on a battlefield out in the boonies. He wasn't fighting against our uniformed military as part of his own organized unit. We captured him with law enforcement on US soil after he ran from the police after committing a crime.

We can legally keep him locked up (assuming a conviction - which isn't much of an assumption) and he's not a threat to do further harm. We don't have to either kill him or let him go. Therefore, he's not the sort of individual who the government needs to classify as an enemy combatant in order to hold him. In fact, I think it would be wrong, in an objective legal sense, to classify Tsarnaev as an enemy combatant. I agree with Graham (and I think most people do) that our goal at this point should be to extract intelligence from Tsarnaev, as I believe the successful prosecution is a fait accompli.

On the issue of Miranda warnings, I really don't see that as a big deal. Despite what you've seen on Law and Order, the police aren't required to Mirandize a criminal suspect. Sorry. They're just not.

Miranda is a set of rules that the government may choose to follow if it wants to admit a suspect's statements into evidence at their subsequent trial. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Therefore, even though lots of y'all probably think that a suspect is entitled to Miranda protection, it's actually fine for the government to intentionally withhold it - just as long as they don't introduce those statements at trial.

And why would they? The government assumably has this guy cold. However, after a certain period of time, the government is going to have to allow Tsarnaev to see his lawyer, which I assume will be a Federal Public Defender. The longer the government goes on questioning Tsarnaev without counsel, the more objections I have.

Graham concludes his Twitter statements as follows:

“The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'"

I think this is really the goal that Graham is getting at, and he's losing the forest for the trees with the "enemy combatant" distinction.