A Constitution for All Seasons

If Senators John McCain, Lindsey Graham and Kelly Ayotte as well as Rep. Peter King are unwilling to grant Dzhokhar Tsarnaev a presumption of innocence in the Boston marathon bombing, perhaps they might be willing to start the debate surrounding the terms of his detention with a presumption in favor of the Constitution instead: namely, that our founding document, cumbersome protections and all, is sturdy enough to protect the nation even in cases of the most heinous and outrageous acts and the gravest enduring dangers.  That was a presumption on which they were unwilling to bet when, on Saturday, they issued a joint statement calling for Tsarnaev’s transfer to military detention as an enemy combatant unentitled to the normal constitutional rights to silence and counsel.  The call rests on a set of assumptions for which no conclusive evidence then existed and that would establish a range of precedents to which the most careful thought ought to be given.  Foremost among them is that the criteria for enemy combatant status inhere in the act itself—which is all that was known at the time of the legislators’ statement—rather than in the surrounding circumstances.

Graham in particular was seemingly unrestrained by careful thought, at least to judge by the rapid pace of his Twitter feed during the manhunt—as at 1:33 p.m. Friday, when he sacrificed the Queen’s English and its use of articles on the altar of the on-high 140-character limit: “If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.”  That tided him over for four minutes, whereupon he felt obliged at 1:37 to express himself with another statement beginning in the conditional: “If the #Boston suspect has ties to overseas terror organizations he could be a treasure trove of information.”  Another three minutes passed before his 1:40 tweet that “the last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent,’” which carried Graham through 1:43, when no sense of irony was detectable in his tweeted warning that the Administration had best not “rush into a bad decision.”

Graham’s colleagues had at least the judgment to wait until dawn broke the next morning to issue their statement (Graham tweeted it).  It observed that “the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city.  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.”

This seems beyond dispute, and it will be stunning indeed if the Tsarnaev brothers turn out not to be the guilty parties.  But as the lawmakers themselves note, terrorist is not the extreme of  “criminal,” and “enemy combatant” is not supposed to be a form of severity imposed by dint of outrage.  The claim of the statement is that terrorism is clearly distinguishable in kind from crime, that it necessitates enemy combatant status and, crucially, that these things can be divined solely based on the act itself.

We have in the case of the younger Tsarnaev a U.S. citizen accused of perpetrating murder and maiming on U.S. soil.  It is distinguishable from other forms of murder and maiming by motive or, according to the statement, by what the motive is not: profit.  Reconstructing the argument, then, the claim would seem to be that anyone who commits murder or terrorizing acts for motives other than profit is an appropriate candidate for enemy combatant status and therefore military detention.  This surely cannot be a precedent we want to set, and it likely is not what the legislators mean.  It would apply to a range of what we plainly regard as crimes.  The Newtown shooting, had the assailant lived, would have been one.  Aurora is another.

Perhaps, with Charles Krauthammer, they meant to refer to expressly political motives.  But that would apply—by all the evidence available at arrest—to Jared Loughner, accused in the Gabby Giffords shooting.  Ought he to have been transferred to military authorities as an enemy of the state?  True enough, as Krauthammer notes, Loughner is apparently schizophrenic and hence clinically incapable of coherent political motives, but such was unknown at the time of the act and cannot be ruled out in Tsarnaev’s based on the evidence available to the lawmakers Saturday morning.

Suppose the definition applies to terroristic acts with political motives committed by sane people.  Enter Timothy McVeigh and Eric Rudolph.  Candidates for military detention?  The criminal justice system handled them fine, and declaring them to be enemy combatants would come perilously close to martial law imposed not out of necessity but out of outrage. 

The purported necessity in this case presumably arises out of the biggest “if” built into Graham’s tweeting: that the Tsarnaev brothers might have had some connection to terrorist networks.  This indeed is possible.  But no evidence exists based on the act alone that could not be similarly said to exist in a case like McVeigh’s or Rudolph’s.

To be sure, there are differences.  Evidence does exist that the Tsarnaevs subscribed to a radical Islamist philosophy.  But the United States is legally engaged in a conflict with the perpetrators of the 9/11 acts, not with all radical Islam.  The latter would amount to a war without definition and hence without bounds.  Graham, speaking in Monday morning’s New York Times, explained the connection this way—drawing, incidentally, on information unavailable during his burst of tweeting Friday, at which point he had already reached his conclusions: Tsarnaev is an ethnic Chechen apparently interested in radical Islam, there are Chechens affiliated with radical Islam who are also affiliated with al-Qaeda, hence Tsarnaev should be held as an enemy combatant until cleared of affiliation with al-Qaeda.  This is a tenuous series of connections—the Queen of Hearts meets ethnic profiling—especially given that Tsarnaev is an American citizen and that the civilian constitutional process is perfectly capable of establishing whether such a connection exists without the assistance of military authorities.  Indeed, what precisely military detention would add that would justify its constitutional costs remains unclear.  The suspect surely knows his Miranda rights whether they are read to him or not—a few episodes of Law and Order would cover that—and McCain is honorable enough that he presumably does not mean Tsarnaev should be physically coerced into speaking.

The point here is not to deny that the Tsarnaevs were connected to a broader network.  They might well have been.  The point is that we do not know, and it would be a dangerous new precedent to declare them enemy combatants based solely or at least almost so on the nature of their act and the scant information available to Graham and the other legislators at the time of their statement.  Moreover, by all indications Tsarnaev’s first-hand account may be the least important component of this investigation.  The brothers appear to have left trails all over the Internet.  They were supposedly filmed on camera planting the bombs.  The younger brother had a Twitter handle, for heaven’s sake, and they seem to have been caught at least in part because they told their carjacking victim who they were and what they had done.

Still, it remains possible that a persuasive case could at some point be made—my own doubts are grave, but let’s retain the possibility for the sake of argument—for declaring Tsarnaev to be an enemy combatant.  But—and here is the decisive point—every presumption ought to be maintained in favor of the normal constitutional process.  This is an opportunity to demonstrate confidence in that process and, through it, ourselves.  It is also an opportunity—an inescapable and unavoidable one—to confront this fact: If that process does not work in this case—a U.S. citizen allegedly committing a terrorist act on camera on U.S. soil—then we might as well up and say it will not work in any case involving terrorism.  Given the difficulty of defining terrorism—and the considerable possibility of legislators defining terrorism down—we also might as well get used to handling what we used to see as domestic cases militarily.  Radical Islam is the enemy today.  Something else will be tomorrow.

Greg Weiner, who teaches political science at Assumption College, is a former political consultant and the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. He is currently working on a book on the political thought of Daniel Patrick Moynihan.

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