The lawfare debate resumes in case of Boston bombers

NY Times:

Some Republican lawmakers want President Obama to declare the surviving Boston bombing suspect an enemy combatant in order to question him without a lawyer and other protections of the criminal justice system, intensifying a recurring debate over how to handle terrorism cases arising inside the United States.

But while the suspect, Dzhokhar Tsarnaev, a naturalized American citizen, is a Muslim, there is no known evidence suggesting that he is part of Al Qaeda. The United States is engaged in an armed conflict with Al Qaeda, not all Muslim extremists. As a result, the dispute is pushing beyond familiar arguments and into new territory.

Senator Lindsey Graham, Republican of South Carolina, is among the earliest and most vocal proponents of declaring Mr. Tsarnaev an enemy combatant. Others include Senators Kelly Ayotte of New Hampshire, Saxby Chambliss of Georgia and John McCain of Arizona, as well as Representative Peter T. King of New York, all also Republicans.

The Obama administration has said it thinks terrorism suspects arrested inside the United States should be handled exclusively in the criminal justice system. It has indicated no intention to do otherwise in Mr. Tsarnaev’s case, but the issue is taking on political currency, underscoring a major divide on national security legal policy.

Senator Carl Levin, a Michigan Democrat who is the chairman of the Senate Armed Services Committee, said in a statement that the laws of war did not apply to Mr. Tsarnaev and that there was so far no evidence that he was “part of any organized group, let alone Al Qaeda, the Taliban or one of their affiliates — the only organizations whose members are subject” to detention as a part of war.

“In the absence of such evidence, I know of no legal basis for his detention as an enemy combatant,” Mr. Levin said. “To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.”

In an interview, Mr. Graham acknowledged that if no evidence were to emerge linking Mr. Tsarnaev to Al Qaeda, then he should not continue to be held as an enemy combatant. But he argued that given the need to swiftly find out if Mr. Tsarnaev knew of other planned attacks or terrorist operatives, the government could and should hold him as a combatant while it searched for any such links.

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Mr. Graham said. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

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While the story is relatively fair, it does not relay the failure of the lawfare approach under Clinton who regularly brought terrorist to trial in US courts.   The trial of the African Embassy bombers is a case which had disastrous consequences that most of the media have overlooked.  As a part of the discovery in the case the government had to disclose that we had intercepted satellite communications from Osama bin Laden to the bombers.  When the revelations were made public bin Laden quit using his satellite phone and we loss a valuable source of intelligence.  In a military tribunal, this evidence could have been kept from the public record and we would have had a better chance of stopping the 9-11 attacks.

In this case, we don't know yet whether the bombers had any association with terrorist groups so its too early to assume they did not.