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Editorial: A Criminal Matter; ‘Enemy Combatant’ Label Doesn’t Fit

Barely had Dzhokhar A. Tsarnaev, the surviving suspect in the Boston Marathon bombings, been taken into custody last week when four Republican lawmakers — U.S. Sens. Lindsey Graham of South Carolina, Kelly Ayotte of New Hampshire and John McCain of Arizona along with U.S. Rep. Peter King of New York — issued a statement arguing that he should be held as an enemy combatant in the war on terror and, in order to gain intelligence, be questioned without affording him the legal rights criminal defendants are entitled to.

We’d argue that these members of Congress are the ones who need to gain intelligence. They apparently are oblivious to the running sore that is the detention facility at Guantanamo Bay, Cuba, where fully half of the war-on-terror detainees are on hunger strike to protest systematic violation of their human rights. Why the United States would want to highlight and compound this disastrous moral failing by holding a high-profile suspect in such conditions is a question known only to the gang of four.

And given that Tsarnaev is a naturalized American citizen, he couldn’t be tried by the so-called military commissions that are supposed to — but never seem to actually — handle terrorism cases. The victims of the bombing and the American people deserve a resolution of this case, not an open-ended detention out of public view.

And then there’s the inconvenient fact that it’s not at all clear at this point that this is a terrorism case at all, as opposed to a criminal act. A working definition of terrorism is an attack on civilians that is meant to further a political, ideological or social end by coercion or intimidation. That’s what distinguishes it from, say, the mass shooting in Newtown, Conn.

In this case, there is as yet no firm indication that the Tsarnaev brothers undertook the bombings for such reasons, or plotted with like-minded individuals or groups to do so. What we have at this point is an American citizen arrested in America for acts allegedly committed on American soil. Holding a suspect as an enemy combatant in that set of circumstances would probably be illegal as well as create a very scary precedent.

In fact, the criminal courts are the right place to try terrorist or criminal acts, and the Obama administration is to be congratulated for proceeding on that basis. According to The New York Times, the government invoked a court-sanctioned exemption to the Miranda warning of the right to remain silent, allowing agents to question the grievously wounded suspect about any imminent further threats to public safety and, satisfied that there were none, proceeded to summon a magistrate to his hospital bedside Monday. He was informed of his rights, the charges against him were read to him and lawyers were appointed to defend him, the beginning of a process that could end with the death penalty or life in prison.

The United States has done a lot of damage to itself in recent years by not adhering faithfully to the constitutional protections that distinguish this country. Playing by the legal rules sometimes complicates things, but not anywhere near as much as bending them does. The legal system has proven itself perfectly capable of handling terrorism cases in the past, including high-profile ones like the so-called underwear bomber. If terrorism is what this case turns out to be, then the nation is wise to demonstrate its abiding faith in the constitutional system that is the pride of our national life.