Dzhokhar Tsarnaev was charged in U.S. District Court today for his part in the Boston Marathon bombing, putting an end, hopefully, to pressure coming from certain Republicans to declare him an enemy combatant, which would have allowed the government to question and detain him indefinitely (see this nifty Politico primer). Because Tsarnaev is an American citizen and has no known ties to Al Qaeda or the Taliban, legal scholars have said that pulling him out of the civilian criminal justice system and declaring him an enemy combatant would have been "absolutely nuts," as the Washington Post reports.
The position of some Republicans in the enemy combatant debate has been unsurprising. John McCain and Lindsey Graham, for example, are reliable hawks on national security issues and both had called for Tsarnaev to be declared an enemy combatant. But what about, say, Rand Paul?
A little over a month ago, Rand Paul embarked on an epic thirteen-hour filibuster over his concerns that an American president might one day use drones to kill an American citizen suspected of terrorist activities rather than provide him with the due process guarantees enshrined in the Constitution. And yet, as his colleagues have called on President Obama to commit a glaring act of executive overreach in the Tsarnaev case, Paul has been silent.
Or take a look at Texas senator John Cornyn. Last month, he made an appearance on the Senate floor during Paul's filibuster to proclaim that "there isn't any more delicate and important matter than the limitations placed on the government when it comes to dealing with our own citizens." Today, Cornyn told Fox News that the Obama administration is stuck in a "pre-9/11 mentality" if it thinks Tsarnaev should enjoy the Constitutional protections afforded to any other American citizen charged with a crime.
A drone strike on an American terrorist sitting at a café in Houston was a hypothetical that will almost certainly never come to pass. The Tsarnaev case is happening, right now, and any Republican who purports to care about the Constitution and its limits on executive power should be speaking up now just as loudly as they were during the drone debate last month.