The Great Debate

The alleged Boston bomber is talking. So far, both what he’s saying and the fact he’s saying it underscore that the government made the right decision in charging him as a criminal in a U.S. federal court, rather than designating him an “enemy combatant” in military custody.

Dzhokhar Tsarnaev has been charged with using weapons of mass destruction, a charge that could land him the death penalty. He’s reportedly told investigators that he and his brother acted on their own, without any instructions from al Qaeda, and that the attack was motivated by a desire to “defend Islam.”

The strength of the evidence (he was caught on video laying his backpack down at the site of the bombing) and the severity of the potential penalty haven’t stopped critics of the Obama administration from claiming he should have been designated and detained as an enemy combatant, though. That’s because according to Senator Lindsey Graham (R-S.C.) the United States is engaged in a war that reaches from the highlands of Afghanistan to the streets of downtown Boston. Therefore we ought to be treating our self-proclaimed enemies accordingly.

Even if one could concoct a legal justification for treating Tsarnaev as an “enemy combatant,” as Graham and others insist is proper, as a practical matter it is a terrible idea.

There is no evidence so far suggesting Tsarnaev and his brother were working with al Qaeda, the Taliban or any of the “associated forces” that Washington says we’re at war with. So there’s no legal basis for treating him as an enemy combatant. That status is reserved for members of armed groups with which we’re actually at war. Proclaiming oneself at war with the United States based on some twisted ideology and imagined battleground doesn’t legally qualify.

In the end, it was a high-tech gadget that allowed the FBI to identify the first Boston bomber in the video, the man agents called “Black Hat.”

This gadget — and the story of how the name of one bomber ended up in an FBI database — has revealed a great deal about the inner workings of the bureau, as well as its relations with an extensive network of countries in the pursuit of terrorism suspects. A wide variety of information is now exchanged internationally.

The gadget was used about 1 a.m. on Friday (April 19), eight hours after the FBI released photos and video of the bombing suspects – images of two men with backpacks strolling through the crowd at the Boston Marathon. One was wearing a black hat; the other a white hat turned backward.

The Obama administration announced on Monday that suspected Boston Marathon bomber Dzhokhar Tsarnaev would “not be treated as an enemy combatant” who would be tried in a special military tribunal. Instead, White House spokesman Jay Carney declared, “we will prosecute this terrorist through our civilian system of justice.”

But this decision is a grave mistake for legal, political and practical reasons. As we sift through the challenging implications of last week’s events, we must aim to deter future acts of terror on our soil by U.S. citizens and legal residents. Treating and trying domestic terrorists as enemy combatants  can provide such a deterrent.

The strongest reason to do this is to send a signal to other would-be terrorists that we, as a society, consider these acts so repellant that we treat them as acts of war.

There is a new justice being administered online by well-meaning and not so well-meaning people who have learned to use the Internet as a tool for investigation and retribution against perceived or suspected wrongdoers. It seems to have started within the last two years with the online bulletin board 4Chan and within the hackers loosely assembled under the name Anonymous. It has since migrated to community sites such as Reddit. Sometimes, the target is a cad suspected of bullying somebody. Recently, amateur sleuths tried to figure out who was behind the Boston Marathon bombings.

It’s well past time to put on the brakes. Uncontrolled online mob vigilantism can potentially wreck lives as enthusiastic dilettantes investigate people in public and rush to inaccurate conclusions.

Last week an informal group of self-deputized online activists communicating on a Reddit board called “/r/findbostonbombers” identified Sunil Tripathi, a 22-year-old Brown University student who has been missing since mid-March, as perpetrator of the Boston bombing. Tripathi’s family, still trying to find their kin, was gracious in their response. But the implication was libelous. Those who perpetuated it should face consequences.

Three major legal questions are now swirling around the Boston bombing suspect, Dzhokhar Tsarnaev.  Since his dramatic capture Friday night, the public debate has already begun muddling these issues.

An overarching question is whether the United States can legally treat Tsarnaev as an enemy combatant, and if not, whether his rights as a civilian defendant can be altered because he is accused of terrorism. President Barack Obama has taken a measured, but concerning, approach on this.

The first question depends on the law – so there is a right or wrong answer. If the Justice Department tried to classify Tsarnaev as an enemy combatant without the proper legal authority, for example, the courts would reject that attempt and completely reclassify him.

Louisville, Kentucky – Friday morning, four Pakistani-American doctors dressed in business suits and medical scrubs sat in one of this city’s most popular breakfast spots and fretted. At an adjacent table, a middle-aged woman grew visibly nervous when their native land was mentioned. One of the doctors, a 47-year-old cardiologist, was despondent.

“We were all praying this wouldn’t happen,” he told me. “No matter what you do in your community, that’s the label that is attached.”

Another doctor worried that years of outreach efforts by the city’s 10,000-strong Muslim community, a mix of Bosnians, Somalis and Iraqis, would be lost. Thursday, he sent a letter to the local newspaper condemning the Boston attack “no matter who committed it.” When news broke Friday that the two suspects were Chechen Muslims, his family grew nervous.

Boston was in lockdown Friday. The machinery of a major metropolitan area in the richest nation on earth had come to a grinding halt. We know why this is happened – a terrorist manhunt – but how, exactly, does a modern bustling city come to a full stop?

In fact, much of ordinary life continues. Water still comes from the taps for a shower; you can telephone your family and friends; you can even work on your computer or read quietly in the backyard. But one key aspect of city life stopped: the movement of people. What matters most in a lockdown of this scale is the ability to halt the circulation of people.

Whether or not a lockdown works often depends on who – the citizens or the terrorist suspect – can stay still the longest.

Editor’s note: This is a memo originally published by Eurasia Group, a political risk firm. It is being reprinted with permission.

It now looks like the two perpetrators in the Boston Marathon bombing are ethnic Chechens who were raised as Muslims. But before we leap blindly into geopolitical speculation on what this all means, let’s take a step back and a deep breath. These bombers may well have more in common with the shooters at Columbine than the 9/11 hijackers.

Early reports suggest these young brothers arrived in the United States by way of Central Asia. The family may or not have fled Russian-Chechen violence in Chechnya in the early 1990s. The two boys appear to have arrived in the Boston area at a tender age-the older brother was about 16, and the younger was about 9.

Politicians know they incur a big political risk if they support gun-control legislation.  Gun-control advocates have to demonstrate that there is also a political risk if they do not support sensible gun legislation.

The only way to do that is to defeat someone who voted against background checks.  Their defeat will become a “teachable moment.”

But who?

Three of the four Democratic senators who voted against background checks on Wednesday are up for re-election next year.  They represent conservative, largely rural states that voted for Mitt Romney last year: Mark Begich of Alaska, Mark Pryor of Arkansas and Max Baucus of Montana.

So another day with another infamous history:  April 15, 2013. That date has now been internalized in our collective guts. This is, alas, an easy one to remember. Tax Day. The Boston Marathon — a race that will never again be run without a shiver of fear, a dark cloud.

Something so darkly grim about runners losing their limbs. One wonders if he or they who planned this thing thought of that — if that gave them their own perverse extra shiver. Hard to know.

It took us a long time from Sept 11, 2001, to calm down, but finally we did. Finally we started to relax, grumbling more about taking our shoes off in the endless airport security lines. The irritations of navigating around started to trump the fear, even though, deep down, none of us really thought 9/11 was a one-off. We were lucky; that’s how it felt. That’s over.