Law and Politics: The Boston legal issues


Interrogating Enemy Combatants

Picking up on the debate over how the Boston terror suspect should be charged, on Monday we talked to Michael Breen, a lawyer, Iraq veteran and director of the Truman Project, about the Tsarnaev case.

“To be charged as an enemy combatant you have to be part of an armed group,” Breen explained, which is also specifically “at war with the United States.” So far the evidence does not show that Tsarnaev “was involved in al-Qaeda in any way,” Breen told The Cycle.

Breen also recounted the history of the unlawful combatant rule, which is aimed at individuals who “violate the laws of war by committing a war crime.”  The goal is to keep those people off the battlefield, but not to use that detention power in order to interrogate them. “The Supreme Court’s been really clear on this point,” Breen emphasized, and “you can’t indefinitely detain somebody as an enemy combatant if the purpose is interrogation.”

Watch the entire interview with Breen, and a briefing from NBC’s Pete Williams here

Why Tsarnaev Probably Can’t Be Charged as an Enemy Combatant

Some prominent Republicans are calling on President Obama to charge Dzhokhar Tsarnaev, the Boston bombing suspect, as an enemy combatant. This is a legal question, so there is a right answer, as I explained in this new article:

If the Justice Department tried to classify Tsarnaev as an enemy combatant without the proper legal authority, the courts would reject that attempt and completely reclassify him.

So the Justice Department … must determine if it is a legal possibility. The short answer is no – unless evidence emerges that tangibly links the suspect to enemy forces, like al Qaeda, that are listed in the September 11, 2001 authorization of force.

This is the main source of the administration’s war powers, and courts have only applied the enemy combatant authority to potential defendants who are in or “substantially” backing al Qaeda, the Taliban or other related forces.

Many observers now talk about how they would like Tsarnaev to be branded an enemy combatant – partially because it would reduce the rights he is afforded. The intense desire to cancel the rights of accused murderers is an old phenomenon, of course. This is one reason our system uses laws and courts, and not a flash-mob referendum, to hold the line.

But the Obama administration can’t just brand any suspect an enemy combatant. It must use the legal criteria. And based on the available information, Tsarnaev probably does not qualify.

So it’s worth keeping that boundary in mind, as spectators call on the Justice Department to take a course that may be entirely off the table.


If Tsarnaev were linked to the organizations required for enemy combatant status, there would still be many risks and shortcomings to that approach.

Benjamin Wittes, an author and co-director of the Harvard/Brookings Project on Law and Security, has a detailed argument against that tack on the Lawfare blog, called, Four Reasons Sens. Graham and McCain are Wrong. 

More broadly, attorney Glenn Greenwald explores how the debate over Tsarnaev’s legal status raises some tough questions about the Obama administration’s counter-terror policies.

This is not a new question, of course. President Bush twice tried to treat American defendants as enemy combatants, denying them rights, but he backed down. One of the strongest rebukes of that approach came from conservative Supreme Court Justice Antonin Scalia, who wrote that jailing an American for years, without due process, violated the “very core of liberty” – the “freedom from indefinite imprisonment at the will of the executive.”

For more of Ari Melber’s legal analysis of the Boston bombing suspect, check out this discussion from “Melissa Harris-Perry.”