Since the city-wide manhunt and apprehension of Boston Marathon bombing suspect 19-year-old Dzhokhar Tsarnaev, government officials and the media have exhibited a troubling tendency to cast Tsarnaev's alleged crimes in military terms.
Commentators have called the bomb Tasrnaev is accused of planting an IED.
A handful of Senators wanted Tsarnaev declared an "enemy combatant" and tried by military commission. Obama deserves credit for not caving and for charging Tsarnaev in civilian federal court, but loses credit for invoking a distorted version of the "public safety exception" in questioning Tsarnaev without reading him his Miranda rights.
Then, the Justice Department charged Tsarnaev with using a "Weapon of Mass Destruction," a crime with a legal defintion so broad that almost any bomb, grenade, mine, or explosive would count. The term "Weapon of Mass Destruction" is ill-defined, inflammatory and prejudicial (See the Iraq War). The FBI's Weapons of Mass Destruction Directorate, established in 2006, is focused not on bombs but on "nuclear, radiological, biological, or chemical weapons." The definition of "Weapon of Mass Destruction" has caused so much debate that, in 2012, the National Defense University published an entire study on the meaning of the term.
Almost every media outlet and the government immediately called the Boston bombing suspects terrorists, despite the fact that we still know next to nothing about what motivated their actions, the key element in the legal definition of terrorism. Glenn Greenwald hits the nail on the head:
It's certainly possible that it will turn out that, if they are guilty, their prime motive was political or religious. But it's also certainly possible that it wasn't: that it was some combination of mental illness, societal alienation, or other form of internal instability and rage that is apolitical in nature.It seems that we have been itching to make Tsarnaev the part of some international, terrorist conspiracy - the best we could come up with is that he immigrated to the U.S. as a child. However, despite the frantic attempts to shoehorn Tsarnaev into some terrorist paradigm (almost every media report mentions that he is Muslim and was "radicalized"), the facts fail to support that narrative. Here's what has been attributed to Tsarnaev:
He said that he knew of no other plots and that he and his brother had acted alone, and he said he knew of no more bombs that had not been detonated.
Pulling words from military lexicon like "Weapons of Mass Destruction," "IEDs," and "enemy combatant," the message is that this crime is somehow not one that the civilian justice system can handle. When we make war terms like "enemy combatant" and "Weapon of Mass Destruction" part of our daily vernacular, they lose their wartime association, and suddenly a whole host of crimes can become acts of war. The dangers of a permanent state of war on domestic soil are obvious.
Even the most stalwart civil libertarians will recognize that the President possesses wartime powers. If murders like the ones Tsarnaev is accused of become "acts of war," then the President has a reason to invoke war powers. (Several Senators specifically encouraged the President to use his powers under "the law of war").
The powers presidents have invoked using war as a justification include removal of Habeas Corpus, torture, assassination, and warrantless searches - all used against American citizens. The justification is always that war is a unique, dire circumstance that temporarily gives the president extra powers.
In the Boston bombing case, there is aboslutely no evidence that Tsarnaev and his brother were members of "Al Qaeda and associated forces," the only group with which the U.S. as a country is involved in an armed conflict authorized by Congress. If any one citizen - or group of citizens - can declare war on the U.S. by committing an especially violent crime, then the executive powers reserved for wartime become executive powers for use anytime. (Not to mention that, in war, the government's objective is to kill the enemy, certainly not a goal we want the government pursuing on domestic soil.)
Greenwald posits the likely explanation for fighting to make Tsarnaev a "terrorist:"
It's hard not to suspect that the only thing distinguishing the Boston attack from Tucson, Aurora, Sandy Hook and Columbine . . . is that the accused Boston attackers are Muslim and the other perpetrators are not. As usual, what terrorism really means in American discourse - its operational meaning - is: violence by Muslims against Americans and their allies.The Senators demanding that Tsarnaev be treated as some "enemy combatant" did warn about "the threat from radical Islam." Pause to consider exactly what face to put on a terrorist threat from an entire religion.
Obama deserves credit for trying Tsarnaev in federal court, but we should consider the implications of using military terms to describe crimes committed on domestic soil by ordinary criminals. We've become far too casual in our rushed invocation of scary-sounding war words. It delegitimizes actual war crimes to bandy about military jargon when describing criminals. It wrongly elevates criminals to military aggressors. And, it creates a culture of fear that invariably leads to erosion of constitutional rights with no added security.