Guantánamo Bay detention camp. AP Images
The Boston Marathon bombing briefly united the nation in horror, grief and a commitment to persevere. That unity quickly disintegrated, however, as Republican senators called for treating the surviving suspect, Dzhokhar Tsarnaev, a 19-year-old US citizen, as an “enemy combatant”—and for interrogating him at length while denying him access to an attorney. At Slate, conservative law professor Eric Posner proposed that Congress enact a new statute authorizing detention and interrogation without counsel for all “terrorism” suspects. Recognizing the suspect’s rights, the senators and the scholar claim, may deny us valuable intelligence.
These suggestions are flawed on multiple fronts. First, how can we declare someone an enemy combatant when there is no evidence that his acts were part of an armed attack by anyone other than himself and his brother? Not every act of terror is an act of war. Second, the Supreme Court has questioned whether the Constitution would permit detention as an enemy combatant of a US citizen arrested on US soil for domestic acts. It upheld the military detention of a citizen captured in Afghanistan, but five justices appeared to take the position that the same authority would not apply domestically, where the criminal justice system is readily available. Third, citizens can’t be tried in military commissions, because Congress limited those proceedings to foreign nationals. And fourth, even enemy combatants are entitled to consult with a lawyer to pursue a habeas corpus action.
A sweeping new law authorizing isolation and interrogation of terrorism suspects would fare no better. The Constitution requires that people arrested without a warrant be brought before a judge for a probable cause hearing within forty-eight hours, at which point they are advised of their rights. Long-term detention without charge is not a constitutional option. On April 21, the Obama administration did invoke the “public safety exception” to Miranda to interrogate Tsarnaev without warnings, although it simultaneously said there were no immediate threats to public safety.
The truly perverse thing about these efforts is that they were designed to keep Tsarnaev away from lawyers, without evidence that a lawyer’s presence would obstruct investigations. David Kris, who headed the Justice Department’s national security division, has argued that providing terror suspects with lawyers actually helps get them to talk, because lawyers often understand that given the charges and evidence, the best thing a client can do to mitigate the penalty he almost certainly faces is to cooperate. So the solutions being suggested are in search of a problem that does not exist.