Chief among the advocates is Sen. Lindsey Graham (R-S.C.), who took to cable news and talk radio Monday to push his case to have Tsarvaev labeled an "enemy combatant." But legal and national security experts say that designation simply would have made no sense.
"[I]t would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant," wrote Brookings Institution national security expert Benjamin Wittes on the popular Lawfare blog, co-founded with George W. Bush administration adviser Jack Goldsmith.
Wittes notes that the Obama administration is only authorized to hold in indefinite military detention those who provide "substantial" assistance to al-Qaeda, the Taliban, or associated forces. We have as yet no evidence that Tsarnaev meets those criteria.
Moreover, Wittes points out that while the Supreme Court has found that a U.S. citizen can be designated as an "enemy combatant," a citizen labeled as such has the right to challenge that designation at an impartial hearing. It is also an open legal question whether a U.S. resident, citizen or not, can be held indefinitely. The Obama administration avoided a decision from the Supreme Court on that issue in Al-Marri v. Spagone by releasing Ali Saleh Kahlah Al-Marri into civilian custody and putting him on trial.
Fellow Lawfare blogger Robert Chesney, a professor at the University of Texas School of Law, concurred that "talk of putting Dzhokar Tsarnaev into military custody as an enemy combatant makes no legal sense." Harvard Law Professor Alan Dershowitz told the conservative Newsmax Web site that the senators calling for the "enemy combatant" designation “should go back to school and study their constitutional law."
Graham has argued that Tsarnaev should ultimately face a criminal trial but should first be held as an enemy combatant. In an interview with conservative radio host Mike Gallagher Monday morning, the senator protested against sending terrorists "this idea of if you can find an American to kill us they can have a legal safe haven."
Regardless, at this point the dispute is purely political, as Tsarnaev has been charged and will be tried in civilian court.