The Boston Marathon and Enemy Combatants: Time to Revisit the AUMF?

Today the Obama administration announced that Boston Marathon bomber Dzhokhar Tsarnaev, a naturalized U.S. citizen, will be tried in federal court.  This development is not all that surprising, as federal law makes U.S. citizens ineligible for trial by military commisions.

But this does not preclude Tsarnaev from first being detained and interrogated as an enemy combatant for purposes of gathering intelligence on his connections, training, and plans others may have for future attacks.  The Supreme Court has already established that U.S. citizens may be held as enemy combatants, a status that allows our military/intelligence apparatus to interrogate such individuals without having to provide them with legal counsel.  As the Wall Street Journal elaborates today:

“The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful. Such a designation allows for extensive, long-term interrogation without a lawyer. Especially because President Obama has barred enhanced-interrogation techniques, such long-term psychological pressure can be crucial to learning if the brothers worked with anyone else, if they received terrorist training, and more.”

“This is why Senators Kelly Ayotte, John McCain and Lindsey Graham are urging the Administration to label Dzhokhar an enemy combatant. The Supreme Court has ruled that even American citizens—Dzhokhar is one—can be held indefinitely as enemy combatants. If he cooperates, the combatant designation can be revoked and he can always be transferred to the criminal-justice system for prosecution.”

Although the fact that Tsarnaev is a U.S. citizen should not be a bar to military detention, supporters of that designation still have a hurdle ahead of them – one that could prove significant. 

In 2001, after the attacks of 9/11, Congress declared war via the Authorization for the Use of Military Force (AUMF).  The AUMF identifies the parties with whom we are at war as follows:

“ …the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In spelling out who the administration is authorized to detain as an enemy combatant in military custody per the AUMF, the National Defense Authorization Act of FY 2012 describes it this way:

“Covered Persons.–A covered person under this section is any person as follows:

“(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.”

“(2) A person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

It may prove difficult to establish that Tsaernav qualifies as an enemy combatant given these parameters, whatever his citizenship.  Authorities have yet to identify a specific terrorist organization with which Tsaernav or his now-deceased older brother may have ties, and so far no terrorist organization has claimed responsibility for the Boston Marathon attack.  The language about “associated forces” – that is, forces associated with al Qaeda or the Taliban – may provide the necessary window, depending on what we learn about the Tsaernav’s possible ties to groups in Russia (a facet of the investigation which Thomas Joscelyn is following here).  But as it currently stands, those of us who would like to see Tsaernav treated as an enemy combatant have our work cut out for us if the AUMF and 2012 NDAA, as written, make up the framework. 

It’s been over a decade since the events of 9/11.  Since then, the jihadist threat has metastasized beyond al Qaeda and the Taliban as we strictly understood them eleven years ago.  If we want to have the opportunity to treat jihadists who have declared war on us as enemy combatants, it may be time to rework our own declaration of war so that intelligence gathering opportunities do not slip through our fingers.