Who, What, Where, and War

Friday, as daily life in Boston and surrounding neighborhoods all but ground to a halt in the midst of a massive manhunt for the so-called Marathon bomber, the nation sent suspect Dzhokhar Tsarnaev a message: “You blew up our children, gunned down our officers, and terrorized our city. You won’t get away with it. This is war.” But was it?

In the wake of Tsarnaev’s arrest, the government found itself in a quandary. Should Tsarnaev face judgment in a domestic court with the associated protections enshrined in Article III of the Constitution, or should he wait indefinitely in military detention without access to a lawyer or trial? The answer to this question hinged on whether Tsarnaev counted as a criminal or as an enemy combatant, a once crystal-clear distinction that has become increasingly murky as the definition of war has expanded.

The 26.2-mile test of physical ability and mental willpower in which around 30 thousand runners competed last week earned its name from the ancient Greek Battle of Marathon, after which a lone messenger sprinted and stumbled that daunting distance to announce victory to his leaders. The Battle of Marathon of 490 B.C. pitted two disciplined armies against each other, and each other alone, in a specific place at a specific time—with accepted guidelines demarcating permissible conduct. 2013’s battle of marathon, on the other hand, saw no marching lines, no uniforms, and no rules.

The 2013 battle of marathon helps illustrate a troubling truth about war in today’s world. Although the United States still sends troops overseas to engage in clear-cut conflicts against specific countries, citizens here know all too well that we also wage a war on terror. Our opponents in Al Qaeda embrace a modern style of warfare where operatives clad in whatever they choose carry out violence on our turf and against our civilians. Al Qaeda’s attacks meet the definition of acts of war, but when they target citizens in the homeland, they also meet the definition of plain, old domestic crime.

The debate over whether to treat a foreign terrorist associated with Al Qaeda as an enemy combatant, and try him in a military court—or as a simple criminal, and try him in an Article III court—has no easy legal answer. Tsarnaev’s case does. For one thing, though all terrorism is terrible, not all terrorism is war. No compelling evidence suggests Tsarnaev has any connection to Al Qaeda or related forces with whom the U.S. is currently fighting in an armed conflict. (Perhaps shockingly to some, including a few members of Congress, his Muslim background does not suffice.)

What’s more, Tsarnaev became a naturalized U.S. citizen in September of 2012, which means that he has a right to the heightened protections the Constitution affords all citizens, protections like due process of law. Monday’s decision to prosecute Tsarnaev through the civilian judicial system, then, was a no-brainer. In doing otherwise, the government would have violated our nation’s founding document.

However, even in cases concerning alleged terrorists with undeniable ties to Al Qaeda and permanent ties to the U.S., the government should bring the accused to trial in Article III courts when it can feasibly do so. National security concerns may sometimes require trials of foreign terrorists to take place in military commissions. But Article III courts have garnered international recognition not only for their fairness but also for their impressive track record in cases of terrorism.

Although military commissions have undergone considerable reform in recent years, they still fall short compared to civilian tribunals in procedural protections that safeguard the rights of the prosecuted. For example, military courts will admit into evidence statements made in the absence of Miranda warnings, as long as the judge finds those statements reliable and voluntary. What’s more, terrorism defendants in military courts are not assured speedy trials, and officials presiding over those courts have broad leeway to close proceedings to the public. Perhaps most importantly, a military commission can deliver a guilty verdict on non-capital offenses with only a two-thirds vote rather than unanimity.

If the U.S. has the opportunity to try terrorists in its own courts with successful results and without jeopardizing the safety of its citizens, it ought to. Making that choice would demonstrate our government’s faith in the efficacy and integrity of its judiciary.

Today, the world is a battlefield, and one where anything can happen to anyone—a trained Marine aiming a rifle at enemies in Afghanistan, fully aware of the danger that surrounds him, or an eight-year-old child cheering on his father in a race, confident in his safety until a backpack explodes at his feet. The United States should strive to preserve some modicum of justice in an age where little else remains sacred.

Molly L. Roberts ’16, a Crimson editorial writer, lives in Holworthy Hall. Her column appears on alternate Thursdays. Follow her on Twitter at @mollylroberts.