On the Capture of Tsarnaev

Over at the Guardian, Glenn Greenwald reacts to Senator Lindsay Graham's call to keep Tsarnaev out of the criminal justice system and treat him as an "enemy combatant":

It is bizarre indeed to watch Democrats act as though Graham's theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this "entire-globe-is-a-battlefield" war paradigm - as supporters of Obama's assassination powers must do and have explicitly done - then it's impossible to scorn Graham's views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham's beliefs are grounded.

It's certainly possible to object to Graham's arguments on pragmatic grounds, by advocating that Tsarnaev should be eventually Mirandized and tried in a federal court because it will be more beneficial to the government if that is done. But for anyone who supports the general Obama "war on terror" approach or specifically his claimed power to target even US citizens for execution without charges, it's impossible to object to Graham's arguments on principled or theoretical grounds. Once you endorse the "whole-globe-is-a-battlefield" theory, then there's no principled way to exclude US soil. If (as supporters of Obama's terrorism policies must argue), the "battlefield" is anywhere an accused terrorist is found and they can be detained or killed without charges, then that necessarily includes terrorists on US soil (or, as Graham put it, using one of the creepiest slogans imaginable: "the homeland is the battlefield")....

[I]t is worth noting that the US government previously did exactly what [Graham] advocated. In 2002, US citizen Jose Padilla was arrested on terrorism charges on US soil (at Chicago's O'Hare International Airport), and shortly before he was to be tried, the Bush administration declared him to be an "enemy combatant", transferred him to a military brig, and then imprisoned him (and tortured him) for the next 3 1/2 years without charges, a lawyer, or any contact with the outside world. That was the incident that most propelled me to start political writing, but it barely registered as a political controversy.

So as extremist as Graham's tweets may have seemed to some, it was already done in the US with little backlash. That demonstrates how easily and insidiously extremist rights assaults become normalized if they are not vehemently resisted in the first instance, regardless of one's views of the individual target.

Let's recall that the police did not bypass the Bill of Rights with Oklahoma City bomber, Timothy McVeigh.  Before his execution, McVeigh got a lawyer, trial, and an appeal.  That's our law--and there's no fiddling with it.  And experience tells us there are very good reasons for placing limits on police questioning.  For related Cato work, go here and here.