Constitutional Issues in the Tsarnaev Case

The Obama administration announced today that it would not hold alleged Boston Marathon bomber Dzhokhar Tsarnaev as an enemy combatant, as some (perhaps most prominently Senator Lindsay Graham) have advocated.  Adam Serwer argues at Mother Jones that this was an easy case:

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 as eligible for military detention "a person who was 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.

Serwer quotes Benjamin Wittes, saying "It's actually not a close question."  Wittes set out his case against detention as an enemy combatant on Lawfare.  CRS has a terrific backgrounder, titled Detention of U.S. Persons as Enemy Belligerents, here.

There's still some buzz about the Miranda question.  New York v. Quarles (1984) created the "public safety" exception; the case is here.  The Obama FBI issued this memo, obtained first by the NYT, on October 21, 2010, interpreting the exception and possibly expanding its scope for terrorist suspects.  (Wittes posted these reflections on the memo on Lawfare.)  Glenn Greenwald at the Guardian writes here; Emily Bazelon at Slate writes here; and Sandy Levinson and Jason Mazzone go back and forth at Balkinization here.  CRS has a good introduction to some of the issues, Terrorism, Miranda, and Related Matters, here.

SDS