When Boston bombing conspirator Dzhokhar Tsarnaev was captured, the event brought up--again--questions about the proper legal procedures for perpetrators of terrorism, particularly when those terrorists who are American citizens. Several conservative senators rushed to suggest that Tsarnaev be designated an "enemy combatant," which would allow for the suspension of his habeas corpus rights and the relaxation of what are otherwise Constitutional rights to due process and, by extension, certain rules of evidence and so forth. Meanwhile, it has long been the position of many on the left that the strongest statement of American values should be to try terrorists as ordinary criminals, with all the Constitution rights to which ordinary criminals are entitled.
Though the particular debate over Tsarnaev appears to be over--he will be tried in civilian court--it's worth revisiting the conundrum his crime presented and those other American terrorists present. It is not so clear that the only choices are those that have been aired by pundits on television. In fact, there are strong moral reasons to treat terrorists who are Americans, leading with Mr. Dzhokhar Tsarnaev, neither as common criminals nor as enemy combatants, but rather as Americans who have committed treason.
Currently, American terrorists often command rights to due process under the Constitution other terrorists treated as enemy combatants are not entitled to. However, American terrorists also commit a serious, additional offense when they raise their arms against their nation, a crime that other terrorists are incapable of committing. To put it differently, when Americans attack the U.S., they commit two offenses: the act of terror (including the murder that accompanies it) and the undermining of the trust Americans invest in each other--trust which serves as a basis for a robust civil society. To understand the importance of this kind of trust, recall the poisonous social climate at the height of the McCarthy era, when people felt that there was "a communist under every bed"--even though there were only a very tiny number of Americans who actually betrayed their country. This is the kind of social malaise that would arise if a large number of Americans did indeed aid and abet the enemy.
So why not call Dzhokhar Tsarnaev's actions treasonous? The terms treason (and traitor) raise many reasonable people's hackles because they are often labels hurled inappropriately by demagogues. Yet the word treason is the term that the Constitution employs for those who side with others in attacking their own country. Mere disloyalty--what rabble-rousers sometimes term treasonous--is different in kind from loading pressure cookers with ball bearings to cripple and kill fellow citizens as part of a broader statement.
Calling this latter action "treason" illuminates a compelling third option--one that is provided by the Constitution--between the two that are commonly presented. Eric Holder views trying suspected terrorists like garden-variety criminals as a litmus test of one's liberalism. The GOP views trying them like enemy combatants as proof positive of one's patriotism. The Constitution suggests that there may be a path satisfying both patriotic impulse and due process: Article III, Section 3 states that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Hence, in order to be tried for treason, the person so charged need not have aided a nation the United State is formally at war with; it suffices for that person to have aided those who are out to harm us. It does not matter if Dzhokhar Tsarnaev personally had ties to terrorist groups. It does not matter if he radicalized himself or he was brainwashed by his brother or mother or his third cousin.
An American found to have committed an act of terrorism should not be privileged compared to other terrorists, but on the contrary, subjected to harsher punishment, as he or she has committed an additional crime. The U.S. Code clearly indicates that treason should be strongly punished. The Federal Sentencing Guidelines "assign treason the highest possible base offense level," which "requires life imprisonment, regardless of the offender's criminal history; a death-qualified jury would, of course, be necessary to impose the death penalty." Clear enough. And, if the current information on his motivations is reliable, quite appropriate for the like of Mr. Dzhokhar Tsarnaev.