by Evan Bernick

On Tuesday, pressure cooker bombs designed to kill and maim transformed the Boston Marathon into what looked like a war zone. The cruel, calculating, and devastating character of this act of terror, together with evidence that the suspects hailed from a breeding ground of Islamist terror and were inspired by Islamist preaching and teachings, brought several Republican senators to argue against treating the surviving suspect, Dzhokhar Tsarnaev, like an ordinary criminal. In a letter, they contended that “we remain under threat from radical Islam,” and that enemy combatant status is appropriate for men who are, in effect, soldiers in an army whose ranks are ever-swelling.

Contrary to political rhetoric and popular belief, however, the U.S. is not now, and has never been, engaged in a “war on terror,” of Islamist or any other persuasion. For this reason, the Obama Administration was correct in its eventual decision to press charges against Dzhokhar in federal court.

The U.S. Constitution does not explicitly discuss enemy combatants. However, there is a general consensus among legal scholars and historians that the Framers assumed customary international law would continue to govern the conduct of war. Accordingly, the Supreme Court has held that, although the executive has a great deal of discretion over the prosecution of war, it must adhere to customary international law. In The Prize Cases, the Court explained that “(f)rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”

According to customary international law, enemy combatant’s legal rights, regardless of their citizenship or physical location, are radically different than those of civilians. Enemy combatants are not entitled to the process accorded civilians, regardless of their citizenship or location, until and unless they are detained. They can be killed in combat, while they are fleeing, while they are asleep, or while they are eating in a café. Once they are detained, they possess a bare minimum of procedural and substantive rights that nations are bound to respect. Nations that choose to accord them additional rights do so gratuitously.

The Framers were careful to ensure that the executive is not free to impose combatant status wherever it deems it useful. They limited the ability of the executive to brand individuals enemy combatants by expressly delegating to Congress the ability to declare war. Only individuals who fall within the scope of congressional declarations of war can be considered enemy combatants.

Absent a congressional declaration of war that encompasses the Tsaernevs, then, there is no constitutional basis for treating them as enemy combatants. The most attractive candidate is the Authorization for the Use of Military Force of 2001 (AUMF). While commentators have vigorously disputed the precise legal character of the AUMF, there is little dispute that (1) it authorizes the executive to use military force against variety of state and non-state actors and (2) its subjects can be treated as enemy combatants.

Close reading of the AUMF discloses that it is not a declaration of “war on terror.” The statute restricts the executive’s use of force to “those nations, organizations, or persons [that the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” It requires any use of force to be rooted in 9/11. Insofar as “nations, organizations, or persons” that aided those attacks are still active, the executive may use military force against them. But there is no authority here for treating all Islamist terrorists as enemy combatants.

The AUMF cannot be plausibly construed to apply to the Tsaernevs. So far as it appears, their most substantive connection to “those nations, organizations, or persons” that plotted the 9/11 attacks came through the late Al-Qaeda preacher Anwar Al-Awlaki’s sermons. It may be that these men they saw themselves as engaged in a war with the U.S. But that does not transform them into enemy combatants. The proper analogy is thus not to Al-Awlaki, who allegedly not only preached but actively plotted terror on behalf of an organization that is described in the AUMF, but to Timothy McVeigh. As I have argued elsewhere, the killing of Al-Awlaki, absent the process that the Constitution guarantees to American civilians, was a lawful military action; a similar action that claimed the life of McVeigh would have been an unlawful assassination.

Assuming that the police have the right man, Dzhokhar Tsarnaev is indeed no ordinary criminal, just as terrorism is no ordinary crime. His barbaric actions were an assault on civilized life itself, upon the human desire to converse, produce, exchange and relax. They are worthy of the harshest punishment that can be lawfully imposed. But until and unless Congress actually declares a “war on terror,” he must be tried and punished for his savagery under the same process as any other American citizen.

Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty.