- - Monday, April 29, 2013


Many have raised concerns about the decision not to hold the suspected Boston Marathon bomber as an enemy combatant. At its core, this is a legal question with a relatively straightforward answer. However, a lack of enemy-combatant status does not mean Dzhokhar Tsarnaev is any less of a terrorist.

In the aftermath of the Sept. 11, 2001, attacks, Congress passed the authorization for use of military force against al Qaeda and its affiliates. Accordingly, the executive branch has the power to treat al Qaeda and its affiliates as enemy combatants. This includes the ability for the military to detain terrorism suspects. This status can, however, be challenged in federal court.

It is important to note that the federal government — namely, the FBI’s High-Value Interrogation Group — is able to interrogate suspects without “Mirandizing” them when public safety is at issue. The primary concern is not with the interrogation itself, but with whether or not the fruits of such an interrogation can be used later in court. The 1984 New York v. Quarles case allows for information gathered in these situations to be admitted even without providing a suspect with his Miranda rights. This public-safety exception is not unlimited, but it does provide needed tactical flexibility for law enforcement in situations like the aftermath of Boston.

Here, the alleged hospital bed confession may be admissible if law enforcement can show there was still a public-safety concern. However, the confession is not likely crucial to successful prosecution, given the amount of evidence already publicly known. Moreover, Mr. Tsarnaev is not thought to be affiliated with al Qaeda to the extent that justifies labeling him an enemy combatant. New information, though, may show otherwise. That determination, and that alone, is the deciding factor in whether to hold him as an enemy combatant.

More disconcerting is the Obama administration’s inability to label terrorism when it strikes our shores.

Officials have contended that the Tsarnaev brothers were motivated by their radical Islamic religious beliefs. The elder brother is said to have frequently visited extremist websites, including the English-language magazine Inspire, which is produced by al Qaeda’s Yemen affiliate.

President Obama has a history of willful blindness when it comes to the radicalization of Islam. Umar Farouk Abdulmutallab, the would-be underwear bomber, and Faisal Shahzad, the failed Times Square bomber, are examples of the administration’s inability to address terrorist threats when they are related to radical Islam. Maj. Nidal Malik Hasan’s attack at Fort Hood, Texas, while shouting “Allahu akbar,” is still designated as “workplace violence.” The president and his allies on the left seem intent on glossing over the continued threat of radicalized Islam. This is a disturbing trend.

It is important to note that there is a significant difference between radicalized Islam and Islam practiced by peace-loving people here at home and abroad. However, former Attorney General Michael B. Mukasey rightly points out that the president’s inability to even use the terrorism label in his public address to the nation after the attacks is a cause for concern.

The actions of first responders in Boston reveal part of our American exceptionalism. They did not hesitate to confront evil, running toward the explosions. There are now hundreds of stories of individual heroes who responded to the attacks by using their jerseys as bandages, carrying their neighbors to hospitals, providing food and shelter for the stranded and shoulders to cry on for the hurting. Two Florida brothers, one a quadruple amputee, are making plans to raise money for amputee victims from the attack.

Ignoring the continued threat of radical Islamist terrorism dishonors both the victims and these heroes who rose to the occasion. Terrorism will not succeed in changing the character of the American spirit, and the perpetrators must be brought to justice in accordance with the rule of law. Boston is an indelible reminder that we live in a world where evil men plot in dark corners to do evil things. The heroic actions of law enforcement and first responders must not be forgotten in the ensuing arguments over the means of prosecuting the defendant charged with unleashing murder and mayhem in Boston.

Brandon Smith, 27, is a lawyer living and working in Washington, D.C

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