Of pressing interest now is the eagerly anticipated questioning of the remaining suspect, who remains in serious condition in a Boston hospital. As we wait for him to be well enough to answer questions, a new controversy has arisen: whether to question him as a criminal suspect (with the usual Miranda legal protections attending) or whether to designate him an "enemy combatant", which strips away those protections (including legal counsel and protection against self-incrimination).
This is as much a political question as a legal one. The law, I suspect, will be fairly clear on this, and it may be that those raising the alternative "enemy combatant" option are doing so for political grandstanding purposes. Such demagoguery has never done the Republic any good, however, and so deserves the most careful consideration.
H/t to my colleague Will Moore for an excellent piece on this. Amidst a long(and sometimes shameful) list of past cases, Will invokes the words of John Adams from the trial of British soldiers involved in the Boston Massacre (Adams was the soldiers' defense attorney):
It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.
But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.This is not a politically popular view, but it is an important one in an era in which politicians are likely to bay for blood at every opportunity in an effort to pander for votes. The loose use of the term "terrorism" is particularly problematic here - if we can apply a separate (non-Constitutional) set of rules to every case we slap the "terrorist" label on, we will make politics the master of the legal system.
Why, for example, do explosions get labelled as "terrorism" but gun violence does not? Should James Holmes be labeled a "terrorist" for the Aurora, CO shootings? What about Adam Lanza? Even Timothy McVeigh and Terry Nichols were tried under standard criminal rules, despite having perpetrated what was in 1995 the largest terrorist bombing attack on US soil in history.
As conservatives are fond of warning us (and then conveniently forgetting when it suits them), we should be careful what powers we give to the government. Do we really want to give this and every future President the power to label crimes as "terrorist" and shunt them to an entirely separate legal system outside the Constitution? Who gets to decide what counts as "terrorist" and what doesn't? Right now there is no standing legal definition in the US; the term is entirely political. How long before "terrorist" becomes simply "stuff I don't like"?
These kinds of problems are, of course, why nations create Constitutions - to set the rules up ahead of time on the most fundamental issues. Crime & punishment has always been on the top of that list, which is why fully five of the ten amendments in the Bill of Rights deal with it in some way. Adams and his contemporaries saw the dangers of allowing a system to be governed by the momentary passions of the mob, who would likely have lynched those British soldiers on the spot. I hope that our leaders today can recover that same wisdom and let the criminal justice system do its work.
Update 4/22/13, 3:30 pm EDT: It appears, based on this news report, that the White House has ruled out the "enemy combatant" road. The suspect has been charged and will be handled by regular criminal courts, at least according to this account.