“Holding The Boston Bomber As An Enemy Combatant?”: Would Tsarnaev Be Convicted Under President McCain?

That was justice at work. It took a week less than two years, an impressively brisk time window, for federal prosecutors in Massachusetts to deliver justice to Dzhokhar Tsarnaev, and the jury needed just 11 hours to deliberate. We didn’t waterboard him or send him to Gitmo, his jailers didn’t make him strip naked and get down on all fours while they led him around on a leash; and still, miraculously, despite these failures of our resolve, the people of the United States got a conviction.

I say “failures” above, obviously, in an ironical kind of way. But I wrote it like that because it strikes me that this is a day more than most other days to take stock of such matters and to remember that in this case, if John McCain and Lindsey Graham had had their way, some of those things could conceivably have happened to Tsarnaev. You might be tempted to say, so what, he’s a mass murderer. And that he is. But he’s a citizen of the United States, and citizens of the United States, no matter how despicable, have rights.

But in April 2013, right after the bombing, when the demagogue needle was way over in the red, McCain and Graham were leading the call for Tsarnaev to be detained as an enemy combatant. Not to be tried as one—even they understood that that would be crossing the line when it came to a U.S. citizen. But they wanted him held and questioned as an enemy combatant—thrown in a military brig and then questioned by military and CIA personnel rather than the FBI, a process that would have stripped him of his right to legal counsel and other basic rights to which any citizen is entitled.

McCain and Graham were joined by their usual compatriots in these crusades, New Hampshire Senator Kelly Ayotte and New York Congressman Peter King. Their argument was that holding Tsarnaev as a combatant for a certain period of time would allow the government to ascertain things like whether he had any al Qaeda connections. Graham said at the time that being able to question Tsarnaev without a defense lawyer present was his whole point. That might sound reasonable, if it weren’t for, you know, the Constitution.

I don’t doubt that there was some measure of sincerity in McCain’s and Graham’s belief at the time, but even if it was quasi-sincere, it was just the worst kind of demagoguery. This did not happen in a vacuum, of course, but was yet another instance in a long chain of McCain-Graham demagoguery that went back to the very beginning of the Obama administration, when the new president was trying to close Gitmo, and Republicans—Graham was particularly noxious, as I recall—were running around charging that Obama was trying to release Gitmo prisoners onto the American mainland so they could live among us.

The reality, of course, is that the Gitmo detainees would by and large have been transferred only to the most secure Supermax prisons in the continental 48. But the reality didn’t matter, see, because what was important was to establish the narrative that this new president, with his suspicious name and questionable provenance and terrorist-palling-around and so on, didn’t want to defend America the way you and I did.

Then came the uproar over the administration’s plan to try Khalid Sheikh Mohammed in a civilian New York court. Now to be sure, the administration botched that one in p.r. terms, by not reaching out in advance to then-Mayor Mike Bloomberg and to Senator Chuck Schumer to make sure they’d both be on board. It wasn’t the first time or the last that the administration has aimed the revolver at its own foot.

But where are we now on that front? KSM still sits down in Guantanamo Bay, awaiting trial. He’s been ping-ponged from the military court system to the civilian and back again. He purports in more recent years to have had a change of heart, bless him, regarding the whole wholesale slaughter of innocents business. Whatever the case on that front, the core fact remains that the families who lost loves ones on 9/11 have not seen any resolution with regard to the legal fate of the mastermind of those attacks.

The families of the victims of the Boston Marathon bombing, on the other hand, got justice in two short years. And this civilian-court efficiency is no aberration. Up through 2011, according to Human Rights First, federal civilian criminal courts had convicted around 500 terrorism suspects. Military courts had convicted eight, and three of those were overturned completely and one partially. It’s hard to find more recent precise numbers, but it’s not exactly as if military tribunals have caught up since then. The bottom line is clear. Civilian prosecutions work, and they live up to (well, more or less—Tsarnaev was questioned before being read his Miranda rights) constitutional standards.

And yet the snarling from McCain and Graham and their amen corner never ends. Obama/Democrats soft on terror is too tantalizing a story line, a toothsome steak that they can’t help but bite into. One of Obama’s more admirable attributes, in fact, is the way he has stood up to this bullying. He’s tried (without always succeeding) to bring our terrorism policies more in line with our stated values while at the same time still prosecuting actual terrorists. If you lament Obama’s shortcomings, just stop today and ask yourself where you think we’d be on these fronts if President McCain had been elected in 2008. His fomentations tell us all we need to know.

By: Michael Tomasky, The Daily Beast, April 10, 2015