Some in Congress are blaming the Obama administration for the Boston Marathon bombing and calling for the surviving suspect to be held in indefinite detention as a so-called 'enemy combatant.'
Unfortunately, this isn't the first time we've been down this path.
Holding American citizens who have been arrested on U.S. soil in indefinite military detention is absolutely incompatible with our values. To do so would risk a return to the dark chapter of American history when we detained Japanese-American citizens during World War II.
I believe such military detention is not only unconstitutional, but has also proven ineffective at achieving justice and gaining intelligence.
In 1971, Congress passed the Non-Detention Act to repudiate the shameful Japanese-American internments during World War II. That landmark legislation says, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress."
Additionally, the Fifth Amendment guarantees that no person shall be "deprived of life, liberty, or property, without due process of law." This right to due process applies to all persons in the United States, but especially our citizens.
Holding Dzhokhar Tsarnaev, the remaining Boston bombing suspect, as an enemy combatant would not only be constitutionally unsound, but because there are no known indications at this point that Tsarnaev was operating as part of any terrorist group, he does not qualify as an "enemy combatant" as defined by recent U.S. law and as interpreted by federal courts.
As national security law expert Ben Wittes wrote recently about Tsarnaev, "Unless and until such evidence arises, military detention is not merely a bad idea. It is simply not legally available."
Under the 2012 National Defense Authorization Act and the Authorization to Use Military Force, which was passed after 9/11, Congress authorized the executive branch to hold in military detention only those who are "part of" or "substantially supporting" al Qaeda, the Taliban or associated forces.
In 2002, Jose Padilla was arrested in Chicago on suspicion of plotting a radiological bomb attack on behalf of al-Qaeda. President Bush designated him an enemy combatant and, arguing that he was not entitled to trial in civilian courts, transferred him to a military prison where he was held for three and a half years without charge or trial.
The Bush administration eventually moved the case to a federal civilian court where Padilla was convicted on criminal conspiracy charges and sentenced to 17 years and four months in prison.
The Padilla case demonstrates that even if all of the legal hurdles could be overcome, military detention offers no clear advantages in the Boston bomber case. In fact, it has several important disadvantages.
In the decade following 9/11, federal criminal courts successfully prosecuted 494 terrorism-related cases. In addition to its proven record in convicting and sentencing terrorists, the criminal justice system has also been used as an effective intelligence collection tool.
Intelligence and law enforcement officials regularly note that terrorism defendants often waive their Miranda rights to remain silent and have provided valuable intelligence on terrorist groups including details of active plots; locations of terrorists, training camps and safehouses; telephone numbers and email addresses used by al Qaeda; and information on recruiting techniques and finances.
The ability to provide information in exchange for reduced sentences has also proven valuable in many cases. Those sent to military custody -- like Padilla -- have much less incentive to talk.
Furthermore, sending Tsarnaev to military custody would undermine the future criminal prosecution that will most likely keep him in federal prison for life or sentence him to death.
In post-9/11 cases where U.S. persons were held in military custody before being prosecuted in federal civilian court, the consequence of military detention has been a substantially shorter sentence than could have been achieved if the suspects had been originally prosecuted in federal court.
Civilian courts are clearly the venue of choice to prosecute these terrorism-related cases, especially for U.S. citizens captured on American soil.