BY BRITTANY SHARKEY
brittsharkey@gmail.com
That which we would call an enemy combatant or a criminal is just as dangerous. After Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured alive, speculation from armchair criminologists abounded. Would Tsarnaev be tried in a criminal court or would he be classified as an enemy combatant?
Many prominent politicians called for Tsarnaev to be tried as an enemy combatant.
Effectively that would mean trying him before a military tribunal and stripping him of many of his constitutional rights. Given Tsarnaev’s actions, many are understandably untroubled by the fact that he may not be afforded his constitutional rights. But upholding his rights is what keeps the justice system working and fair. It may not result in a speedy verdict and sentence, but trying Tsarnaev in a criminal court that accords him all his rights enables us to do it right. It allows us to say that despite his intent to cause terror, we didn’t become blinded by hatred or revenge and abandon our principles.
The term “enemy combatant” is a relatively new innovation. Before Sept. 11, the phrase was “unlawful combatant” and was defined as a soldier of an enemy army who presented such a threat that he could not be afforded the typical prisoner of war rights under the Geneva Convention. In the war on terror, for the first time we were no longer fighting organized armies or even defined groups. The enemy was a nebulous, undefined group. So in order to fight this new kind of war, we needed new definitions. Thus, enemy combatant replaced unlawful combatant and with it the requirement of belonging to an enemy army. The definition of enemy combatant became just as vague as the enemy we were fighting.
For Tsarnaev, the classification just doesn’t fit.
The simple fact is that Tsarnaev and his brother were not some criminal masterminds backed by a larger organization or a larger political motive. Their botched escape attempts surely speak to that. They are no different from Timothy McVeigh, the D.C. snipers or Eric Rudolph, the man who bombed the 1996 Atlanta Olympic Games. In each of these cases, there’s a lone wolf and maybe an accomplice with a crazy political agenda and the will to destroy. The previous bombers were all tried as civilian criminals; it is right to include Tsarnaev in their number.
Tsarnaev being classified as an enemy combatant would have admittedly been cathartic.
It would have put him in a completely different status of criminal and stripped him of most of the things that make him an American. In a way, it would have seemed a fitting repayment for the feelings of betrayal that underscore this young man’s story. The United States opened its doors to this young man and his family who immigrated here from Chechnya. The family lived on welfare to get established, and the sons were educated in our schools. It seems incomprehensible that the repayment for the opportunity offered this young man and his family would be to set explosive devices at the finish line of the Boston Marathon. Labeling him as an enemy combatant would have symbolized the rejection of Tsarnaev as an American.
However, catharsis has not been and will never be a legally sufficient reason to strip a citizen of his constitutionally protected rights.
Tsarnaev was charged with a federal criminal offense and was not classified as an enemy combatant. And rightfully so.
The criminal justice system in this country is far from perfect, but it works if we allow it to. One of the things that keeps it working is the protected rights of the accused. The intent of terrorism is to cause disruption and to forever redefine normalcy. In the face of terror, the best thing we can do is to carry on as we always did. We shouldn’t change rules and strip rights because two cowards wanted to make themselves known by causing mayhem.
In the end, one of the best punishments for Tsarnaev will be treating him no differently than any other accused criminal.
Author’s Note: This will be my last column for The Daily Mississippian after two years of writing. It’s been an incredible experience, and I want to thank everyone for reading, retweeting and sending me comments. It’s been an honor to be a writer for this paper.
Brittany Sharkey is a third-year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.
