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Boston Bomber Charged, But Not as Enemy Combatant

By Brett Snider, Esq. on April 22, 2013 | Last updated on March 21, 2019

Boston bombing suspect Dzhokhar Tsarnaev has officially been charged for his alleged role in the deadly attacks, but not as an enemy combatant.

The wounded 19-year-old has been unable to speak since his capture on Friday. He is being treated at a local hospital, where a magistrate judge presided over the legal proceeding at Tsarnaev's bedside, Reuters reports.

Some lawmakers have been pushing for Tsarnaev to be treated as an "enemy combatant." But that would not be appropriate under the law, a White House spokesman said Monday.

What Is an Enemy Combatant?

Generally, enemy combatants are foreigners who engage in hostile actions against the United States, but are not eligible to be considered prisoners of war.

In order to be considered a prisoner of war, an individual must:

  • Be commanded by a person responsible for his troops,
  • Have a distinctive sign or flag visible from a distance,
  • Carry arms openly, and
  • Conduct operations in accordance with laws and customs of war.

Those who fail to meet these criteria or fail to associate with a foreign government are considered unlawful enemy combatants.

Military Tribunals

Unlawful enemy combatants are tried by military tribunals, which do not have the same constitutional guarantees as a civilian criminal court. For example, there is no trial by jury.

An enemy combatant may also be detained, almost indefinitely, while waiting for a military tribunal to commence. Efforts by former enemy combatants to be released from detainment centers like Guantanamo Bay by writ of habeas corpus have proved mostly unsuccessful.

Why Isn't Tsarnaev an Enemy Combatant?

White House Press Secretary Jay Carney told reporters Monday that Tsarnaev is an American citizen, and therefore cannot be tried by a military tribunal, reports Fox News.

Many prior terror suspects, including the Times Square attempted bomber, have been charged and convicted in the civilian criminal court system, and the White House believes that this is the appropriate way to treat Tsarnaev.

Like many other American citizens, Dzhokhar Tsarnaev will await his day in court, to be judged not by a military tribunal, but by a jury of his peers.

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