It was probably inevitable that some Republicans would declare that Boston bombing suspect Dzhokhar Tsarnaev should be declared an “enemy combatant.” It’s hard to fathom how they have determined that an American citizen with no demonstrable connections to organized terrorist groups like Al-Qaeda could possibly fall under this designation. But then some coverage of this “debate” tended to obscure the issues it was seeking to clarify.

CNN host Erin Burnett had a baffling exchange with Rep. Adam Schiff (D-Ca.). After Schiff explained that he couldn’t see any constitutional argument that would allow Tsarnaev to be held as an enemy combatant, Burnett responded with this (4/22/13):

But people are going to ask the question of whether terror has changed. An enemy combatant, according to the government, as you well know, is a person who planned, authorized committed or aided the terrorist attacks of September 11, 2001. And a person who was a part of or substantially supported Al-Qaeda or the Taliban. Now that worked back when the combat was related to 9/11. But if it has indeed spread, and you all of a sudden have extremist groups, whether inspired in Chechnya or somewhere else that are killing American civilians and it’s done by Americans, isn’t it the term that needs to change rather than us say the person doesn’t fit the term?

Schiff called it a “great question” and responded in part by saying that “we ought to call the administration to…come forward with a new structure and to articulate how the rule of law will support protecting the country in this new threat environment.”

This is a remarkable discussion. Dzhokhar Tsarnaev was not treated as an enemy combatant because he’s not one. And as Ari Melber wrote (Reuters, 4/21/13), the government’s desire to come up with novel legal theories has been mostly a series of failures:

Some of President George W. Bush’s more extreme efforts, like erecting a zone without habeas corpus at Guantanamo Bay, were flatly rejected in a string of Supreme Court decisions (Rasul, Hamdan, Boumediene). Other experiments proved unworkable even for Bush. He ultimately dropped attempts to detain two American defendants, Jose Padilla and Yaser Hamdi, as enemy combatants. Along the way, this approach earned a stinging rebuke from Supreme Court Justice Antonin Scalia–no radical leftie–who wrote that jailing an American like Hamdi for years, without due process, violated the “very core of liberty” –the “freedom from indefinite imprisonment at the will of the executive.” Scalia reminded the president that “where the government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court.” (There are legal exceptions to that, Scalia pointed out, but Bush had failed to meet them.)

And, as has been noted elsewhere, the successful prosecutions of Zacarias Moussaoui and Umar Farouk Abdulmutallab–the so-called “underwear bomber”–suggest that the legal system is an appropriate venue for such trials. Burnett’s confusing notion about creating a new legal category for terrorism suspects ignores this history, and contributes to the idea that the Boston bombings represent a new kind of threat the country has not faced since 9/11.