April 23, 2013 | By William Synder
(Re-posted from National Security Law Blog)
I have been this question a lot from students:
Professor: I have a question regarding the charges and trial of the Boston bomber. I took your Prosecuting Terrorists course two years ago, and I vividly recall the semester long debate over how and where to try suspected terrorists. It was my understanding that we had the option to try a suspected terrorist in federal court or in a tribunal as an enemy combatant; the issue was always where should we do it?? Further, when tying this information into all the courses I took with Professors ____ and ___, it was clear that once an American citizen took up arms against the US then they lose their protections as a citizen. This was elaborated on in the discussions in class and then later by the controversial targeted killing of American citizens (Anwar al-Awlaki being one). The White House justified their targeted killings (rightly I believe) by designating them as enemy combatants–regardless of citizenship. So, to my question: How/why could the White House make statements today regarding the trial of Tsarnaev, and state that he cannot be tried as an enemy combatant because he is a US citizen? Per the Washington Post: “White House spokesman Jay Carney said that under U.S. law, American citizens such as Tsarnaev cannot be tried by military commissions.” This seems to contradict their own justifications for targeted killings.
Any insight would be greatly appreciated.
The conflict is a statute. The Constitution and Supreme Court, see Quirin, permit trying US citizens as enemy combatants. The Military Commissions Act of 2009 (MCA) authorizes the use of military commissions against only aliens. It is unquestionably true to say that the military commissions established by Congress may only be used to try aliens, because Congress so limited them in the Military Commissions Act.
There are two complications from that straightforward statement. First, the citizen could be held (detained) as an enemy combatant until the end of hostilities (unless they are expected to go on forever). Detention as an enemy combatant is separate from prosecuting for a crime. Note Jose Padilla, among others, who were US citizens detained and interrogated for a long time prior to transfer to the Article III court system and the start of its speedy trial act. That is what some senators were proposing. So, when senators proposed that, and people responded, “but it would be illegal to try him as an enemy combatant,” they were talking right past each other—apples and oranges, if you like.
Second, a US citizen could be tried by a military commission other than the one established by the Military Commissions Acts of 2006 and 2009. The President could establish a military commission under his own authority. But, the Supreme Court in Hamdan said that there are three types of military commissions with preconditions to establishing them.
Most importantly under Hamdan, the president cannot create a military commission under his own authority to try offenses like conspiracy that were not cognizable under the law of war. Thus, said the Court, he needed Congressional authorization to try Hamdan for conspiracy. Congress gave that to him in the form of the MCAs of 2006 and 2009, but limited those stature to aliens. Congress could, also create a new military commission now or amend the MCA to authorize prosecutions of US citizens by military tribunals.
So, a more correct statement from the White House would be: “”White House spokesman Jay Carney said that under U.S. law the Military Commissions Act of 2009, American citizens such as Tsarnaev cannot be tried by the military commission it created.”
Does that help?