Some politicians and pundits are agitating for the captured Boston Marathon bomber to be declared an enemy combatant, sent to Guantanamo, and tried in a military commission. But the only legal, pragmatic, and effective way to handle this situation is to conduct a lengthy interrogation of Dzhokhar Tsarnaev and then prosecute him in United States federal court.

First, it is important to dispense with the misinformation. Under law, U.S. citizens cannot be prosecuted in the military commission system Congress set up for the detainees at Guantanamo. So this is not even a lawful option for dealing with Tsarnaev, who is a naturalized U.S. citizen.

The option of designating Tsarnaev an enemy combatant and transferring him to military custody for indefinite detention is probably illegal and, in any event, a terrible idea. The Supreme Court has held that an American citizen captured on the battlefield can constitutionally be detained under the laws of war as an enemy combatant. It has not extended this concept to citizens like Tsarnaev who are arrested in the United States for terrorism crimes. Furthermore, the Court's reasoning relied heavily on the law passed by Congress just after 9/11 that empowered the president to use "all necessary force" against any individual, organization or nation that perpetrated the 9/11 attacks. So, to place the younger Tsarnaev brother in military detention the government would need evidence that he was an active member of al Qaeda or an al Qaeda affiliated group -- information it almost certainly lacks, at least at the present date.

Placing Tsarnaev in military custody would also backfire against the United States. The action would elevate him to the status of a warrior, when we should be treating him as a low life criminal. The matter would also become a high-profile case for the international human rights community, focusing negative attention on the United States' practices rather on the perpetrators' heinous acts. Such an action would also undercut our moral authority to encourage other countries to rely on fair, open systems of justice for dealing with civilian matters rather that military control of domestic affairs.

The purported justification for using military detention is to enable authorities to engage in a lengthy interrogation of the suspect free from civil liberties concerns like Miranda warnings and the right to counsel. However, a proper interrogation should be able to be conducted in the civilian system, which would obviate the need for military detention.

In my view, the highly skilled High Value Interrogation Group created by President Obama should conduct an un-Mirandized interrogation of Tsarnaev by for as long as necessary. Information gathered in these sessions would not be turned over to the prosecutorial team and used for intelligence purposes only, such as determining any linkages Tsarnaev and his brother may have had to international terrorist organizations or other operatives living abroad. None of this information will be at all necessary to obtain a criminal conviction against Tsarnaev as there appears to be ample forensic evidence, eye-witness testimony, pictures and video to establish proof beyond a reasonable doubt that he is a terrorist and mass murderer.

After this interrogation is over, the case should enter the criminal justice system, starting with Miranda warnings. A new team of investigators could then interrogate the suspect, unless he invokes his right to remain silent and desire for counsel.

Civil libertarians may flinch at this suggestion, but there would be no constitutional violation. The right at stake is the protection against self-incrimination. If the intelligence that is gained from the High Value Interrogation Group is only used for national security purposes and not to prosecute Tsarnaev -- there is no self-incrimination problem.

Furthermore, the approach I suggest is far more protective of civil liberties than what the Obama administration is doing now, which is invoking the "public safety" exception to Miranda. Under this concept, the administration claims the right to conduct an un-Mirandized interrogation of the suspect to collect information relating to protecting the public from possible additional acts of violence. The Supreme Court has authorized such interrogations for up to 48 hours, but the administration has argued that in cases of this magnitude the public safety interrogations could last even longer. Moreover, by relying on this exception, the administration is reserving the right to use whatever evidence it collects in the un-Mirandized interrogations in its criminal case against Tsarnaev.

The courts will have the final say on whether intelligence interrogations can take place absent Miranda warnings. Yet, Congress could bolster the case for them by enacting a new law to define when they could take place and the procedures the government must use to protect the rights of the criminal suspect. Enacting a law along these lines would be a positive new tool to enhance our national counterterrorism defenses. It would certainly be a more productive activity than the tired calls for military detention of U.S. citizens.

 Cheesecat wrote:

 timetowaste85 wrote:
Eh, after his post, I agree fully with Experiment. Cut the guy's balls off. Arms and legs while you're at it. He can survive off a feeding tube and a catheter. Once again, bloodthirsty? No. Justice. I'm not advocating anything beyond what he deserves.

No that's blood just plain bloodthirsty that's not justice at all and if it turns out he's Innocent down the road then you're just being cruel to someone for didn't do anything wrong. Justice isn't about bringing misery and suffering to others it's about fairness, safety and demonstrating good

behavior.

 timetowaste85 wrote:

That's why in the first post I made, I said only if it's proven without a shred of doubt (near impossible, I'll grant, but if it's 100% certain he's responsible, he deserves it). If they can't prove it 100%, no, it wouldn't be fair. Or right. But to answer your post: fairness-the guilty party took off the arms and legs of innocents. Safety-he won't be doing it again. Good-the citizens of America can rest easy that there is Zero-Tolerance to the asshats who would seek to harm the innocent. Pretty sure that meets all your marks.

Of course, sometimes I just try to post "bloodthirsty" things to see how long it takes to upset Hotsauce.

The federal prison system never operated its own gas chamber or electric chair for pre-Furman executions. Pre-Furman executions carried out within the federal prison system were by hanging. All federally mandated executions by lethal gas or electrocution were carried out in state prisons.

People who are under 18 at the time of commission of the capital crime [10] or intellectual disabled[11] are legally precluded from being executed.

 daedalus wrote:

 timetowaste85 wrote:

That's why in the first post I made, I said only if it's proven without a shred of doubt (near impossible, I'll grant, but if it's 100% certain he's responsible, he deserves it). If they can't prove it 100%, no, it wouldn't be fair. Or right. But to answer your post: fairness-the guilty party took off the arms and legs of innocents. Safety-he won't be doing it again. Good-the citizens of America can rest easy that there is Zero-Tolerance to the asshats who would seek to harm the innocent. Pretty sure that meets all your marks.

Of course, sometimes I just try to post "bloodthirsty" things to see how long it takes to upset Hotsauce.

Why not rape him to death then? Why not keep him alive and torture him for the rest of his natural life? Where do people like you draw the line? What do you do to others that also seek to harm the innocent? How about people who scam others, or don't cause physical pain? Do you dismember them and torment them for as long as you can extend their lives? What about people who park over the lines in the parking lot?

 djones520 wrote:
D, do you think they'll just throw him to the jackals because a bunch of guys on the Interwebs yell for it?

Of course he'll be dealt with, within the rule of law.

 timetowaste85 wrote:
But a guy considering murder is less likely to do it if he knows he has a chance of suffering the same fate as opposed to three meals and a warm bed and work out bench every day.

 HiveFleetPlastic wrote:

 timetowaste85 wrote:
But a guy considering murder is less likely to do it if he knows he has a chance of suffering the same fate as opposed to three meals and a warm bed and work out bench every day.

Evidence does not appear to support this assertion. It seems that:

- there's no credible evidence that capital punishment lowers the homicide rate, and
- statistics show that states with the death penalty have consistently higher murder rates than states without the death penalty

The federal prison system never operated its own gas chamber or electric chair for pre-Furman executions. Pre-Furman executions carried out within the federal prison system were by hanging. All federally mandated executions by lethal gas or electrocution were carried out in state prisons.

People who are under 18 at the time of commission of the capital crime [10] or intellectual disabled[11] are legally precluded from being executed.

 Jihadin wrote:

Stuff.

 timetowaste85 wrote:
But a guy considering murder is less likely to do it if he knows he has a chance of suffering the same fate as opposed to three meals and a warm bed and work out bench every day.

 d-usa wrote:
Me: Everybody talking about blood lust and Sharia law. It doesn't matter one bit because we have a Constitution to follow.
You: Other cultures are not as touchy feely as us and more bloodthirsty.
Me: Great. We have a constitution to follow.
You: I've seen stuff man. I've been in combat and this is how it is in war. That is how they fight. You also don't treat Veterans like you should because you disagree with me on this. Try to be a better worker.
Me: Great. We have a constitution to follow.
You: I don't feel any emotions! Did I mention that I've seen stuff.

 whembly wrote:
I just want a clean, clinical court case.

If he gets the DP, so be it.

He'll at least spend the rest of his life in prison.

Him having "his day in court" should be everyone's goal as it shows everyone that we are a nation of law.

 Jihadin wrote:
Careful D. You have patients in your VA hospital like me there Now I worry about them