With the awful horrors of the Boston Marathon attack so fresh and vivid in our minds, it compels us all as citizens to confront an Evil - so vile that our first impulse is to shrink away from this urgent task and just hug our families even tighter - immediately so that the existential threat to our civilization can be reduced. Simply stated, our open society still is vulnerable, twelve years after Nine Eleven Two Thousand and One, and after the Federal Government has spent hundreds of billions of dollars on Homeland Security. Accordingly, the urgent question remains - just how do we protect ourselves against such an asymmetrical enemy in a war without any defined battlefields, where every street corner in America is a bombing target?
The answer most assuredly is not found in the criminal law jurisprudence. America is at war for its very survival. Therefore, any talk by politicians about prosecuting and jailing, or even executing Mr. Tsarnaev, upon his conviction is suicidal nonsense. We don't need to punish him for his murders - YET. We need to interrogate him to ascertain everything he knows about impending future terror attacks, and the whereabouts of any other terrorists he knows.
The ongoing debate between the liberals and conservatives is being framed in absolute terms - libs: he is NOW and ALWAYS WILL BE ONLY a criminal, so RIGHT NOW, he must be treated as a defendant with all the attendant due process rights that apply in federal civil court criminal proceedings. Conservatives: he is a terrorist and must be kept in military custody forever, or until the war ends with the signing of a peace treaty.
Both positions are too simplistic and ignore the complexities of modern terrorist warfare - in all likelihood there never will be a signed, formal peace, as we are not fighting a nation-state. Accordingly, even as an accurately identified enemy combatant, Mr. Tsarnaev, as an American citizen should not be subject to indefinite detention without a right to a trial -EVENTUALLY.
Thus, to answer my question as posed in the title of this Blog Post - an enemy combatant ceases to be such when the intel folks say so; when they have completed their non-prosecutorial interrogation, and I have no difficulty in rebuilding the wall so that all information derived from the war defense interrogation are not used as evidence in any subsequent criminal trials. When Mr. Tsarnaev can not hurt America ever again, then it is timely to turn him over to the DOJ so that we can hurt him - as the criminal defendant he then becomes - to the full extent of the Law. Nothing unconstitutional in seeing this evil man as having performed too different roles enemy combatant and criminal murderer. Our civilization is surely sufficiently sophisticated to see Tsarnaev as the Man in Full that he is.
