A key issue to be resolved, should one of the Boston Marathon bombers be captured alive, is whether the captive should be detained within the domestic criminal justice system (with all the rights that such detention entails, to include, inter alia, representation by an attorney and the right to remain silent) or be transferred to the control of the U.S. armed forces (as an unlawful enemy combatant for subsequent interrogation to gather intelligence information that may preclude other terrorist acts directed against the United States). Deciding to try the bomber in the civil courts will deny law enforcement and military officials access to potential intelligence that might allow authorities to thwart future terrorist acts. What Obama Administration officials decide in this regard will demonstrate to the American people whether the Administration takes the threat of terrorism seriously.
Presuming that the Global War on Terror (GWOT) is still ongoing (which Islamic jihadists certainly believe to be true), persons who commit terrorist acts against the United States would qualify as unlawful enemy combatants. Lawful enemy combatants are persons who take up arms at the direction of their sovereign and who comply with the law of armed conflict as laid down in the Hague and Geneva conventions and their protocols. When captured, lawful combatants are entitled to full protection as prisoners of war (protections explicitly set forth in the Third Geneva Convention of 1949).
Unlawful enemy combatants, on the other hand, are persons who take up arms without authority of a sovereign and who do not comply with the law of armed conflict. Unlawful combatants, when captured, may be tried by the capturing power for violating the law of armed conflict. In fact, taking up arms unlawfully is itself a war crime. Further, the Supreme Court of the United States has characterized as well-established the “power of the military to exercise jurisdiction over . . . enemy belligerents [combatants], prisoners of war, or others charged with violating the laws of war.” Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) (emphasis added).
By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.
Ex Parte Quirin, 317 U.S. 1, 30-3 (1942) (emphasis added). U.S. citizens (like the younger of the two Boston Marathon bombers) who take up the cause of a foreign enemy to attack the
United States may also be designated as unlawful enemy combatants:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague convention and the law of war.
Id. at 37-38 (emphasis added).
The Supreme Court recognizes that it is the President, as Commander-in-Chief, who determines whether those who threaten the Nation have “the character of belligerents,” and, once that decision has been made, the courts “must be governed by the decisions and acts of the political department of Government to which this power is entrusted.” The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862); see also In re Yamashita, 327 U.S. 1, 12 (1946) (“The war power . . . is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy . . . evils which the military operations have produced.”). Finally, the Supreme Court has noted as “obvious and unarguable” that there is no governmental interest more compelling than security of the Nation. Haig v. Agee, 453 U.S. 280, 307 (1981) (citing Aptheker v. Sec’y of State, 378 U.S. 500, 509 (1964)).
In this matter, due to the terrorist nature of the attacks, due to the ongoing existence of the GWOT, and due to the continuing attempts by radical Islamic jihadists to attack the United States, its people, and its interests both within and without the borders of the United States, the most prudent course of action for the President and the Obama Administration would be to designate the younger of the two bombers (should he be captured alive) as an unlawful enemy combatant. Once he is so designated, he should be transferred to military custody to undergo a thorough interrogation. To do otherwise is to fail to take those actions best able to meet the security interests of the American people.