By Mike Dorf
The White House just charged Dzhokhar Tsarnaev in a civilian criminal court. Provided the government wants to execute or otherwise punish Tsarnaev, that was always the only real option. After all, in the Hamdan case, the Supreme Court held that military commissions could not be used to try detainess without congressional authorization. Congress provided such authorization in the Military Commission Acts of 2006 and 2009, but only for aliens, not citizens.
So what were Senator Lindsey Graham and others going off about over the weekend in suggesting that Tsarnaev be sent off to Gitmo as an enemy combatant to whom the constitutional rules of criminal procedure do not apply? One possibility is that they hoped to strip Tsarnaev of his citizenship first, then ship him to Gitmo. This may actually be realistic because Tsarnaev is a relatively recently naturalized citizen, but I think it may first require a treason conviction in a civilian court--and so would defeat the purpose of shipping Tsarnaev to Gitmo. (I could be wrong about that. I'm not an immigration law expert. Corrections in comments on this and other points of course welcome.)
Perhaps what Graham was suggesting that Tsarnaev should be held and interrogated as an unlawful enemy combatant for some extended period--substantially longer than the FBI thinks it can interrogate a terrorism suspect even under its expansive view of the public safety exception to Miranda (as discussed in my post earlier today). That too now appears to be off the table--but with Sen. Graham having raised an interesting set of constitutional questions, I'll address them here. Unfortunately, they may arise again in another case.
1) Citizenship. Graham and others were correct that Tsarnaev's U.S. citizenship does not necessarily pose a constitutional obstacle to subjecting him to military jurisdiction. The 2004 Hamdi case affirmed that principle, even as it rejected the Bush Administration's claims that U.S. citizens (and, a fortiori, foreigners) lack judicially enforceable due process rights. A majority of the Court rejected the position espoused by two Justices--the odd couple of Stevens and Scalia--under which a U.S. citizen charged with fighting for the enemy is entitled to be tried for treason in a civilian court.
2) The AUMF. Hamdi suggests another potential obstacle to military detention, however. In dissent on this point, Justice Souter, joined by Justice Ginsburg, contended that Hamdi could not be held in military custody because Congress had not authorized such custody, and accordingly the Non-Detention Act barred it. The plurality opinion of Justice O'Connor rejected that argument because the plurality thought that the Authorization for Use of Military Force (AUMF) counted as authorization of detention of enemy combatants, even though it didn't expressly mention enemy combatants. But the AUMF only applies to "those nations, organizations, or persons [that the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Is Tsarnaev part of an organization that was involved in 9/11? Maybe by virtue of working with his brother, who may have received training from al Q'aeda affiliates, he is. But that looks like a factual question, at least as a threshold matter. If I had to predict, I'd say that five Justices of the SCOTUS would not now find an obstacle in the Non-Detention Act + AUMF, regardless of what the facts show. But that's the legal realist in me, not the legal scholar. (One further possibility is that the Court might say that the Non-Detention Act has nothing to do with military custody. This argument was advanced by the government in Hamdi but the plurality didn't reach it because they found statutory authorization in the AUMF.)
3) Quirin and Haupt. One might think that Hamdi is inapplicable to Tsarnaev's case because Hamdi was apprehended in a foreign theater of war, whereas Tsarnaev was apprehended here at home. But the Hamdi plurality relied in substantial part for its conclusion that U.S. citizens may be subject to military jurisdiction on Ex Parte Quirin, the Nazi Saboteur Case, which arose on U.S. soil. One of the German soldiers who was there subject to military jurisdiction was a man named Haupt, who, the Court assumed arguendo, was a U.S. citizen. That made no difference. The Court stated: "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." So Haupt's case looks like a crucial precedent for the argument for military custody for someone like Tsarnaev.
4) Padilla. However, Haupt, even while acting in violation of the law of war, was clearly engaged in warfare, as his actions were taken in pursuit of the aims of an enemy in a recognizable war, and presumably on orders from enemy superiors. That's not quite true of Hamdi but, assuming the facts as alleged by the government as of 2004, it was still clear enough that Hamdi was affiliated with an enemy force, albeit an irregular one. What's most troubling about subjecting someone like Tsarnaev to military jurisdiction--and what wasn't true of either Haupt or Hamdi--is that Dzhokhar Tsarnaev and his brother Tamerlan Tsarnaev may well have been acting on their own, in ways that make them largely indistinguishable from domestic lone-wolf criminals. To be sure, we don't know that yet. Perhaps further details will emerge indicating that Tamerlan was on a mission at least loosely directed by the Taliban, al Q'aeda or some other affiliated force as to which it could be said that a state of war exists with the United States. But even with some such evidence, the best analogy is probably to the case of Jose Padilla--another U.S. citizen who received some foreign training and whom the U.S. at least initially sought to subject to military custody and adjudication. The SCOTUS never passed on the lawfulness of so treating Padilla but a fair number of scholars thought that the most sensible set of results in the Hamdi and Padilla cases would have been to allow military adjudication for Hamdi but not for Padilla, based on the location of the acts with which they were charged.
5) The Confederate Soldiers. What about the fact that we have a gigantic precedent for the proposition that military custody and adjudication are constitutionally permissible for U.S. citizens committing hostile acts on U.S. soil--namely, the treatment of Confederate captives during the Civil War? These many cases seem to me much more like Haupt's case than like that of Padilla or Tsarnaev: There is an organized enemy force. Thus, Confederates who violate the law of war (by, e.g., slipping behind enemy lines out of uniform to sabotage railways) are still clearly enemy combatants when doing so. There is no difficulty in saying the war paradigm applies to them. That could turn out to be true of a Padilla or Tsarnaev, but it seems to me that at least there needs to be some substantial threshold adjudication of affiliation with some sort of enemy force before people like them are taken outside of the civilian criminal justice system.
6) The Two Basic Questions. The real constitutional questions, then, are both substantive and procedural. As a substantive matter: What must the government show when it wishes to submit a U.S. citizen to military custody and adjudication for acts perpetrated on U.S. soil? To prevent military justice from swallowing civilian criminal justice, I would want a showing of some substantial affiliation with an enemy force. Now it's true that demanding such a showing means that a truly decentralized organization will avoid having its "soldiers" subject to military jurisdiction. But I'm not sure that's a problem because such people--the sort of person who simply goes to a jihadi or other radical website and is inspired to commit an act of terrorism without ever receiving any training or orders--really isn't a "soldier," and the rules of war were not designed with such a person in mind.
As for the procedural issues, I would want at least access to a civilian court to determine whether the relevant substantive showing has been made. Habeas would be available for this purpose after the fact, but ideally such access should be made available in advance. Putting in place such a system no doubt requires some new legislation. The problem, of course, is that there aren't many political rewards for Congress in further restricting the limits on military custody and adjudication. Indeed, we will probably see bills introduced going in the other direction--allowing for the possibility of military trials for U.S. citizens in circumstances like Tsarnaev's. I don't think such legislation is likely to be enacted, but I think it's even less likely that we'll see the sort of legislation I favor being enacted.
Finally, I want to be clear that what I've said in this post goes to the constitutional permissibility, under existing precedents, of subjecting someone like Tsarnaev to military custody and adjudication. If I were writing on a clean slate, I would almost certainly require civilian courts more frequently than the SCOTUS has. And even given existing precedent, I have been discussing the question of what can be done, not what ought to be done. Even if the Administration could, consistent with the Constitution and existing statutes, subject Tsarnaev to military custody and adjudication, there are good policy reasons why it shouldn't. In charging Tsarnaev criminally, the Justice Dep't got this one right.