When Dzhokhar Tsarnaev, Boston Marathon Suspect No. 2, was brought into federal custody, a fierce debate ignited over whether he should be tried as a criminal in the courts or treated as a so-called enemy combatant under the laws of war.
Those who called for President Barack Obama to designate the 19-year-old U.S. citizen as an enemy combatant didn't want him to avail himself of the right to remain silent. They want answers. As do I.
The president declined to declare Mr. Tsarnaev an enemy combatant -- for good reason. Such a designation is the first step to a privileged status granted to legitimate members of armed forces under the Third Geneva Convention of 1949, which went into effect in the aftermath of World War II. The primary purpose of this convention is to ensure the humane treatment of prisoners of war.
To receive these special considerations, certain conditions must be met. Belligerents must wear the uniform or another distinctive sign of belonging to an army, carry arms openly and obey the laws of war, which demand that civilians not be targeted. Once captured, enemy combatants are bound to provide only their name, date of birth, rank and serial number. They are to be treated respectfully, are immune from criminal prosecution for lawful wartime acts of violence and are to be released upon cessation of hostilities.
Mr. Tsarnaev is by no means a legally recognized member of the armed forces of an enemy state, he did not carry arms openly and he allegedly attacked innocent civilians, killing three, injuring nearly 200 others and later gunning down two police officers, one of whom died. Why would he be granted POW privileges and released when hostilities -- which "hostilities"? -- cease?
It is likely that certain commentators and politicians are referring to the status of "unlawful enemy combatant." Unlawful means combatants who are not members of an organized military or who do not follow the laws of war. If taken into custody, they can be prosecuted for their crimes.
Only three possible venues for prosecution exist: state courts, federal courts and military tribunals. And there is a ferocious legal debate over whether a U.S. citizen accused of committing a crime on U.S. soil can be taken into military custody and treated as an unlawful enemy combatant. Even if such a suspect were a member of al-Qaida, subjecting him to a military tribunal would stretch federal law and U.S. treaty obligations to the breaking point.
With the law in this regard being ambiguous at best, why take the chance of compromising the successful prosecution of Dzhokhar Tsarnaev? It is not as though there are no reasonable alternatives. A state of martial law does not exist in the United States, the writ of habeas corpus has not been suspended and the federal courts are open for business and operating effectively.
Make no mistake: The objective is to successfully and lawfully hold terrorists and cold-blooded killers accountable for their heinous deeds. I say this not from some academic perspective, but as a former international war crimes investigator who has brought to justice senior members of political, military and criminal organizations for acts of torture, rape, extrajudicial execution, mass murder and extermination.
In the case of Dzhokhar Tsarnaev, federal, state and local law enforcement authorities have done it right. They worked together in an unprecedented and heroic effort to apprehend Suspect No. 2, and for this the public can be forever grateful. Now is not the time for political rhetoric. The U.S. federal criminal justice system is uniquely situated to handle the most complex terrorism cases, which it has proven time and again.
Thankfully, the president did not bow to injudicious demands that, however well-intentioned, could have had a disastrous effect on the outcome of this case and on how Americans and others view our system of justice. His decision paves the way for criminal justice professionals to do their job, so that justice will be done.
John R. Cencich, professor of justice studies at California University of Pennsylvania, holds a doctorate in juridical science from the University of Notre Dame and served as a senior U.N. war crimes investigator at The Hague.