Right on schedule, the Republican right is already in partisan mode. How predictable.
The talking point goes something like this: Dzokhar Tsarnaev should be held by the military as an enemy combatant, denied a trial in criminal court, and stripped of all his rights as a naturalized U.S. citizen, most notably the right to counsel - and if Barack Obama refuses to take those steps, that would prove he's soft on terrorism.
For instance, Liz Cheney tweeted last night, "NBC reporting Obama admin will treat terrorist as a 'criminal' and not enemy combatant...Will Obama allow him to lawyer up?" Lindsey Graham tweeted, even before Tsarnaev was captured, that Obama should hold the twisted kid as an enemy combatant, rather than "rush into a bad decision." And, pre-capture, the right-wing American Center for Law and Justice drew this line in the sand: "What Obama administration officials decide (enemy combatant versus criminal court) will demonstrate to the American people whether the administration takes the threat of terrorism seriously."
Outside the conservative bubble, does anyone at this point really question whether this president takes the threat of terrorism seriously? After finishing the Osama bin Laden job that the Bush administration botched? After decimating hundreds of suspected terrorists via drones?
The decision has already been made, anyway. Tsarnaev is a U.S. citizen who allegedly committed a domestic crime in the city of Boston, and the real debate, in the real world, is whether he should be tried in state or federal court. There's no need to hold him as an enemy combatant, because domestic terrorism is already a crime under federal law. And despite what Graham and his usual sidekick John McCain falsely argued overnight - "Under the law of war we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel" - it would be illegal to treat Tsarnaev that way, because a 2012 federal law requires that U.S. citizens be routed through the courts and afforded their constitutional rights.
If conservatives ratchet up their attacks on Obama for putting the suspect on trial as a criminal, just remember that they've danced that tiresome number many times before.
Remember Faisal Shahzad, the guy who tried to bomb Times Square in the spring of 2010? When Obama made decision in May to route him through the regular courts, Republicans slimed the president as a terrorism wuss. Former New York Gov. George Pataki complained that suspects should not be allowed to "lawyer up" and thus "weaken our security." Liz Cheney complained that the Obama people "aren't willing to acknowledge that (they're) facing a committed network of terrorists," and John McCain chimed in.
But after Shahzad pleaded guilty in federal court to the 10 counts listed in the indictment, and after he went away for mandatory life imprisonment, poof went the right-wing complaints. The system worked as intended; Republicans simply chose not to acknowledge it. They were similarly ticked off when the Obama team OK'd a federal trial for failed underwear bomber Umar Farouk Abdulmutallab; after he was convicted and sentenced to life, poof went the complaints again.
Why can't they park the partisanship and just let the criminal justice system work - as it has worked, repeatedly, during the post-9/11 era? Richard Reid, the failed ’02 shoe bomber, was routed through the courts. The 9/11 conspirator Zacarias Moussaoui was routed through the criminal courts.
Those were Bush decisions. In fact, the Bush administration, in one of its own documents, reported that, between 2001 and 2008, it used the courts to obtain 319 convictions in "terrorism or terrorist-related cases" – roughly 90 percent of all its terrorism cases, with the average jail sentence running for 16 years.
Edwin Chemerinsky, the prominent law professor and dean of the University of California law school in Irvine, said the other day that "the impulse to take away constitutional rights to gain security must be resisted, because, in reality, complying with the Constitution is not an impediment to safety." No, it is not - as our courtroom track record has already demonstrated.
Complying with the Constitution - showing Tsarnaev how the system of justice works in his adopted country - is actually an affirmative vote for our values. So let the guy "lawyer up," and let the rule of law do what it does best. As Obama remarked yesterday, we want "to do this right....That's why we have courts."
This story was reported through a partnership in news coverage between NBC10.com and NewsWorks.org.