The White House announced today that Dzhokhar Tsarnaev will not be held as an “enemy combatant,” and will instead be tried in civilian court. This is a direct rebuff to four Republicans — Lindsey Graham, John McCain, Kelly Ayotte, and Pete King — who had been clamoring for him to be held indefinitely without trial or tried under laws of war in a military commission. Tsarnaev will be charged with conspiring to use weapons of mass destruction against people and property in the United States, resulting in death.
You can expect GOP attacks on the decision to continue in coming days. Meanwhile, civil libertarians such as Glenn Greenwald continue to slam the Obama administration for its decision not to read the accused his Miranda rights. The administration has proclaimed the right to indefinitely detain anyone who it believes has given “substantial” support to Al Qaeda and its affiliates.
Defending the civil liberties of suspected terrorists is generally not considered a popular position. And yet, in a bit of a surprise, a new poll released today finds that a plurality worries more about government trampling constitutional rights while battling terrorism than it does about government not doing enough to fight it. From the Post:
Which worries you more: that the government will not go far enough to investigate terrorism because of concerns about constitutional rights, or that it will go too far in compromising constitutional rights in order to investigate terrorism?
Will not go far enough: 41
Will go too far: 48
Interestingly, despite the fact that the push for Tsarnaev to be held as an enemy combatant is coming from GOP officials, Republican respondents to the poll are even more strongly tilted towards worrying about government compromising constitutional rights, by 56-34. Conservatives tilt this way by 46-41. Democrats also agree by 48-43.
On top of this, the poll was taken from April 17-18 — well after the bombings had taken place, on April 15th.
As it happens, it would not be legal for the United States to hold Tsarnaev as an “enemy combatant.” Adam Serwer explains:
Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily. The 2012 National Defense Authorization Act, which Graham vocally supported, defines “enemy combatant” as “a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” There’s no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al Qaeda, the Taliban, or associated forces. Unless that evidence emerges, it wouldn’t be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.
The only other thing I’d add here is that officials on both sides of this argument agree that state and federal law enforcement did an absolutely terrific job in capturing the bombing suspects. Why wouldn’t we allow our legal system to see the task through?
At any rate, it’s heartening to see that a plurality of Americans supports preserving constitutional rights. To some degree, this probably reflects the fact that terrorism as a concern has dramatically receded in the 12 years since 9/11. After all, it’s hard to imagine such public attitudes amid the trauma that took hold after the attacks. But today’s polling does suggest the possibility that the effort by Graham, McCain and others to rekindle that glorious post-9/11 period of disdain for civil liberties is a bust.
After all, the Post poll’s question wording is pretty straightforward. It directly pits the goal of preserving constitutional rights against the goal of investigating terrorism. The Constitution wins.