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Author Topic: Boston Bomber's legal status. Enemy combatant?  (Read 12477 times)

Coronach

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Boston Bomber's legal status. Enemy combatant?
« on: April 20, 2013, 08:08:54 pm »
http://www.foxnews.com/politics/2013/04/20/republican-lawmakers-urge-obama-to-use-combatant-status-for-bombing-suspect/
Quote
Top Republican senators urged President Obama on Saturday to hold the suspect captured in the Boston Marathon bombing as a potential enemy combatant -- denying him a government-appointed attorney and other legal rights under the “Law of War” so investigators can learn about other possible attacks.

After his capture Friday, bombing suspect Dzhokhar Tsarnaev was not read his Miranda rights, which essentially state those arrested have a constitutional right to be told information they give to officials can be used against them. However, the public safety exception that allows suspects to be questioned without being read those rights expires 48 hours after the arrest. “The events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city,” Sens. Lindsey Graham, South Carolina; John McCain, Arizona; and Kelly Ayotte, New Hampshire, said. “The suspect, based upon his actions, clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent.” They were joined in the statement by New York Republican Rep. Peter King.

Tsarnaev, 19, was captured in Watertown, Mass., about eight miles from the bombing site. He remains in a hospital in serious-but-stable condition with two gunshot wounds. He will be interrogated by the Obama administration's High Value Interrogation Group. Justice Department officials tell Fox News they hope to file charges against Tsarnaev by the end of the day Saturday. Federal public defenders said they have agreed to represent Tsarnaev. Miriam Conrad, the federal defender for Massachusetts, says her office expects to represent Tsarnaev after he is charged. Conrad said Tsarnaev should have a lawyer appointed as soon as possible because there are "serious issues regarding possible interrogation."

 The Republican lawmakers also said: "We remain under threat from radical Islam and we hope the Obama administration will seriously consider the enemy combatant option. We are encouraged our high value detainee interrogation team is now involved … .A decision to not read Miranda rights to the suspect was sound and in our national security interests.”

President Obama in the immediate aftermath of the bombings declared them an “act of terrorism.” And he vowed after Tsarnaev’s capture Friday to get answers but has yet to say whether the administration will use the combatant status.

The second suspect, Tsarnaev’s 26-year-old brother, Tamerlan Tsarnaev, was killed early Friday morning in Watertown in a shootout with police. Two bombs set off Monday afternoon near the marathon finish line killed three people and injured 176 others. The president on Friday night said the victims “deserve answers.” “We will determine what happened,” he said. “We will investigate any association that these terrorists may have had.”

The American Civil Liberties Union expressed concern about Tsarnaev being questioned without being read his Miranda rights. Group Executive Director Anthony Romero said Saturday the exception applies only when there's a continued threat to public safety and is "not an open-ended exception" to the Miranda rule.

The Obama administration has a range of legal options in the case, including seeking the death penalty. The administration has indicated it intends to move quickly to build a criminal case. Prosecution in federal court would seem a natural course for an administration that previously won a life sentence against Umar Farouk Abdulmutallab of Nigeria for trying to blow up a packed jetliner using a bomb sewn into his underwear on Christmas Day 2009. The administration also will put Usama bin Laden's son-in-law on trial in January on charges that he conspired to kill Americans in his role as al Qaeda's chief spokesman.

As a U.S. citizen, Tsarnaev could not be tried by a military commission under current law; the only option for prosecuting an American is in civilian courts. A federal official with knowledge of the case said Tsarnaev was naturalized as a U.S. citizen in September 2012. The official was not authorized to speak publicly about details of the case and requested anonymity. King told Fox News before Tsarnaev’s capture that his Miranda Rights could be denied. “I believe he can be interrogated under the public safety exception of the Miranda ruling because clearly life and death can be involved here,” he said. “I feel confident the FBI has the right to interrogate him.” The lawmakers were followed by Sen. Saxby Chambliss of Georgia, the top Republican on the Senate Intelligence Committee, who said: "I am disappointed that it appears this administration is once again relying on Miranda's public safety exception."

But Rep. Adam Schiff, D-Calif., a former federal prosecutor and member of the House Intelligence Committee, told Fox News the administration should ignore "hasty calls to treat the suspect as an enemy combatant."

The Associated Press contributed to this report.

Discuss.

 
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    FMJ

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #1 on: April 20, 2013, 09:16:29 pm »
    Wasn't he practically raised here?  And hasn't he lived here most of his life?

    That's pretty simple, then.  No?
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    Coronach

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #2 on: April 20, 2013, 09:44:32 pm »
    I have an opinion. I'm just seeing what others think. And yes, and yes. He is a naturalized US citizen.

    Mike
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    freeman1685

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #3 on: April 20, 2013, 09:51:21 pm »
    Wasn't he practically raised here?  And hasn't he lived here most of his life?

    That's pretty simple, then.  No?

    What's your point?  As far as I'm concerned, he forfeited any claim to the protections that even a resident alien would be entitled to, when he attacked peacefuly assembled Marathon spectators, in an outright terrorist action.

    Raised here?  So Flippin' what!
    ArizonaStupidity cannot be cured with money, or through education or by legislation.  Stupidity is not a sin, the victim can't help being stupid.  But stupidity is the only universal capital crime; the sentence is death, there is no appeal, and execution is carried out automatically and without pity.  RAH

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #4 on: April 20, 2013, 09:53:48 pm »
    Lived here, raised here... makes no difference.

    BUT, he was naturalized as a US citizen, last year.  Period.  Full stop.

    US citizen, guys... our rights are his rights.  :bash



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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #5 on: April 20, 2013, 10:02:36 pm »
    Picking someone up on a battlefield/war zone and tossing them into POW/enemy combatant status is one thing. It's part of the nature of war that people will be captured and you will need to do something with them or gather intel from them.

    But someone who committed a criminal act, on American soil, and is an American citizen to boot(not that it's a big deal, just icing on the cake)? I call bull excrement on the very notion that his rights could essentially be stripped just because of the nature of his crimes. Charge him, try him, execute him if found guilty. Third world dictatorships pick people up, deny them rights or the benefit of consul and trial, and toss them away in to some hole for an undetermined length of time. Last I checked we aren't some third world s___ hole dictatorship, despite the best efforts of a few at the top. I sure wont rejoice at us acting like one. Rights are rights, not just nice things to give people when it's convenient.

    That's one slippery slope NO sensible person should want to go near. Let alone down.
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    luke213(adamsholsters)

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #6 on: April 20, 2013, 10:02:59 pm »
    I don't like what he did anymore than anyone else but he's a citizen as far as I'm concerned.

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    JesseL

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #7 on: April 20, 2013, 10:14:43 pm »
    I'm not at all comfortable with the notion that if you're accused of something bad enough then your civil rights evaporate.
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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #8 on: April 20, 2013, 10:42:46 pm »
    His citizenship status is irrelevant to the crimes of which he is accused.  He is not, as far as I have heard, been alleged to be working for any foreign government or organization with whom we might be at war.  I say no "enemy combatant" status.

    Try him like anyone else and let the prosecutors of Mass. prove he is guilty of murder, attempted murder, vandalism, robbery, carjacking, failure to yield, speeding, resisting arrest, illegal discharge of a firearm within city limits, disturbing the piece, destruction of public property, and anything else they think he has done and punish him according to the laws of Mass.
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    booksmart

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #9 on: April 20, 2013, 11:10:32 pm »
    I agree: he's a citizen, and is due his full rights.

    coelacanth

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #10 on: April 20, 2013, 11:18:48 pm »
    We don't yet know enough to describe his status as an "enemy combatant" with certainty.  If we learn from existing evidence, or from interviews with him after he recovers sufficiently to be questioned, that he was working in concert with or under the direction of foreign interests then his status would be unquestioned.  Following that logic, it would be prudent to label him an enemy combatant until evidence proves otherwise.  The fact that he is technically an American citizen does not alter the fact that he brought the battlefield to the city of Boston. 

    It also seems clear that he conspired to make war on the innocent citizens of that city and therefore is an oath breaker in regard to his citizenship.  Would that not affect his status as a naturalized cititizen?  I'm no Constitutional scholar but the weight of a person's actions would seem to determine what his status is re: the law.
     

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #11 on: April 20, 2013, 11:41:00 pm »
    My opinion may be a little un-popular.

    But I firmly believe my grandfather many greats back fought the british under the idea that certain basic rights are the domain of all people, independent of of government.  One of those is the right to throw off old government and establish new if your government becomes destructive of basic rights.

    Since he is a citizen he has the force of law on his side.  But the fact remains that certain rights should be afforded all people.  And high on that list should be the right to fair and impartial due process.
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    booksmart

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #12 on: April 20, 2013, 11:41:44 pm »
    Well, according to http://www.justice.gov/olc/ina340.htm

    Quote
      As we have noted, it is a requirement of being naturalized that the applicant be "a person of good moral character." INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). As a matter of law, no applicant can be found to be "of good moral character" if he or she "at any time has been convicted of an aggravated felony." INA § 101(f)(8),8 U.S.C. § 1101(f)(8). (8) Similarly, as a matter of law, no applicant is "of good moral character" if he or she has been convicted of, or has admitting to committing, certain other offenses within a specified period of time. INA § 101(f)(3), 8 U.S.C. § 1101(f)(3). (9) Accordingly, should the INS discover that a naturalized person, as a matter of law, had not satisfied the "good moral character" requirement because of disqualifying criminal convictions or offenses that fell within INA § 101(f)(3) or (f)(8), it could seek revocation on the grounds that that person's citizenship was "illegally procured," INA § 340(a), 8 U.S.C. § 1451(a). No statute of limitations applies to a judicial denaturalization proceeding under section 340(a). (10) Nor would the INS be estopped from seeking denaturalization if naturalization was illegally procured because INS agents failed to exercise due diligence in examining the application for naturalization.

    Though this does appear to be based more on the idea of discovering crimes that occurred before becoming a naturalized citizen, I doubt it's a far stretch for it cover the events of and following the bombing.

    So, it appears I may have to change my answer: if he'd been born here, he should have his full rights. But as a naturalized citizen, there appears to be legal ground for revocation of those rights granted solely by citizenship.

    Nick Cage

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #13 on: April 20, 2013, 11:48:41 pm »
    I don't care who he's working for.
    He's a US citizen on US soil.

    We are all owed to see this man gets full due process and has every single civil right observed carefully and fully.

    For there still exists the presumption of innocence, he is as yet, innocent as he has not been proven guilty of any crime only accused and hunted.
    This is a vital that the idea of the presumption of innocence be maintained at all costs. It is the core of what makes our justice system the best ever known in the world.

    Power has to prove to normal people that the person they are accusing of whatever crime are actually guilty enough that other normal people will agree with the state and say he's guilty.

    And to even consider revoking his citizenship is just beyond the pale.  :facepalm

    Thought this was pretty good:


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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #14 on: April 20, 2013, 11:56:48 pm »
    The legal process for it may be once proven guilty, citizenship is revoked on grounds.

    Ask Panhead Bill - I ain't a lawyer.  :shrug

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #15 on: April 20, 2013, 11:57:06 pm »
    Anything obtained under false pretense is null and void.  No?   If it is found that you are an enemy agent who has brought the battle to these shores then you are no more entitled to the rights afforded a citizen of the United States than any other enemy soldier anywhere in the world.

    By your own actions you have rendered yourself beyond these considerations.  If this is not true then the word "treason" has no meaning.
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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #16 on: April 20, 2013, 11:59:39 pm »
    Anything obtained under false pretense is null and void.  No?   If it is found that you are an enemy agent who has brought the battle to these shores then you are no more entitled to the rights afforded a citizen of the United States than any other enemy soldier anywhere in the world.

    By your own actions you have rendered yourself beyond these considerations.  If this is not true then the word "treason" has no meaning.

    That was My thought.
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    booksmart

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #17 on: April 21, 2013, 12:02:03 am »
    A lawyerly type may well question intent: was there an intent to commit the crime before he was naturalized, so that the naturalization occurred under false pretenses, or was the intent to commit the crime conceived well after naturalization.

    Personally, I don't think it matters, but lawyerly types may see it otherwise.

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #18 on: April 21, 2013, 12:03:44 am »
    If he's treasonous, try him for treason and if found guilty hang his ass.
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    NukMed

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #19 on: April 21, 2013, 12:07:35 am »
    We don't yet know enough to describe his status as an "enemy combatant" with certainty.  If we learn from existing evidence, or from interviews with him after he recovers sufficiently to be questioned, that he was working in concert with or under the direction of foreign interests then his status would be unquestioned.  Following that logic, it would be prudent to label him an enemy combatant until evidence proves otherwise.  The fact that he is technically an American citizen does not alter the fact that he brought the battlefield to the city of Boston. 

    It also seems clear that he conspired to make war on the innocent citizens of that city and therefore is an oath breaker in regard to his citizenship.  Would that not affect his status as a naturalized cititizen?  I'm no Constitutional scholar but the weight of a person's actions would seem to determine what his status is re: the law.

    Article III Sec. 3:  Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

    If he in fact "conspired to make war on the innocent citizens of that city," then that would fall under the definition of treason and he would be tried as any other citizen who commits a crime, and not as an enemy combatant.

    If he "was working in concert with or under the direction of foreign interests," that makes him a traitor (in addition to the other crimes he has committed), but it doesn't make him an enemy combatant.

    U.S. citizens who commit espionage, sabotage, or any other crime at the behest of some foreign government are not enemy combatants.  They are traitors and guilty of treason in addition to their other crimes.

    I'm not ruling out the involvement of a foreign power (however unlikely).  I'm just saying that I think the "enemy combatant" status is off the table.

    In addition, I recognize that somewhere in the NDAA or elsewhere may be codified in federal law some definition of "enemy combatant" of which I am unaware.  The accused may very well fit that definition.  I would reject that definition, though, on the same grounds as I would reject a federal law that stated that the sky was down and the ground was up.  I reject the nonsensical.
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    booksmart

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #20 on: April 21, 2013, 12:08:25 am »
    That Justice.gov page I posted the link to has case law going back a stretch - 1917 being the earliest one I've seen yet...

    Quote
       As we have noted above, an alien may be naturalized only upon "strict compliance with the . . . 'terms and conditions specified by Congress.'" INS v. Pangilinan, 486 U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)). See also INA § 310(d), 8 U.S.C. § 1421(d) ("A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this title and not otherwise") (emphasis added); Maney v. United States , 278 U.S. 17, 22 (1928) (Holmes, J.); Tutun v. United States, 270 U.S. 568, 578 (1926) (Brandeis, J.); Johannessen v. United States, 225 U.S. 227, 240-42 (1912); Schneiderman, 320 U.S. at 161-62 (Douglas, J., concurring); United States v. Beda, 118 F.2d 458, 459 (2d Cir. 1941) (A. Hand, J.). The ordinary prerequisites for naturalization are set forth in INA § 316, 8 U.S.C. § 1427 (1994), and include requirements as to lawful residence in the United States, (7) good moral character, attachment to the principles of the United States Constitution, and favorable disposition to the United States. At the time of applying for naturalization, the applicant bears the burden of establishing that he or she possesses the qualifications for citizenship. INA § 316(e), 8 U.S.C. § 1427(e); INA § 318, 8 U.S.C. § 1429 (1994). The standard of proof is whether the applicant has established the necessary facts by a preponderance of the evidence. See 8 C.F.R. § 316.2(b) (1997).

    Emphasis mine.  :shrug

    Coronach

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #21 on: April 21, 2013, 06:29:29 am »
    My thoughts on it are pretty simple. He is a US citizen, on US soil. His actions can be identified as criminal, under both state code and US code. He should be prosecuted as a criminal. He is, prima facie, not an "enemy combatant", as it is not clear that he was engaging in any activity that can be defined as warfare, and is not in the service of a foreign power. Furthermore, if he was in the service of a foreign power, or could be defined as engaging in warfare against the nation of which he is a citizen, there is a legal remedy for that, as well; namely, the charge of treason and the punishment of the gallows.

    We're wrangling about whether to afford him 5th Amendment protections, and I think it is actually moot. The Miranda case, AFAIK, does not protect him against "questioning"- he can be chatted up all day long- but rather against having his answers used against him in court. Looking at the evidence compiled against him, I would daresay that his self-incriminating testimony is not really necessary to obtain a conviction. He can spill the beans or clam up, and it won't make a bit of difference. More dicey is the use of his statements against others- I'll leave that to the lawyers. Add in the perfectly legit use of the safety exception in Quarles, and I think we can do quite a bit of talking with him without worrying overly much about the outcome of his case and the ones to follow.

    I understand that there are distinctions between unformed soldiers of an enemy and "enemy combatants", and that they can and should be treated differently. There are, however, differences just as big between enemy combatants and treasonous US citizens, and they need to be treated differently, too. The law likes bright-line distinctions, and "US Citizen" is a pretty convenient bright line. Under the law, this clown is the same as me. I really don't think we want to travel very far down the road of "well, you're an enemy combatant because the Administration thinks what you're doing aids our global enemies or harms our global interests."

    Mike
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    Coronach

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #22 on: April 21, 2013, 06:44:11 am »
    Also, unlike Anwar Al-Awlaki and his ilk, Tsarnaev is not 1. engaging in ongoing activity that can place US citizens or US interests at risk and 2. is not hiding out of the reach of capture, he's in a hospital bed under guard. Al-Awlaki's assassination gave me a trifle of pause and can be debated as to its propriety (I'd like to see some sort of trial in absentia before we just toss US Citizens onto the "kill them if given the opportunity" list, but I'm old fashioned that way), but this is clearly not even that far into the grey area. He's in custody, we have a beautiful case against him, we don't need to color outside of the lines on this one.

    Mike
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    Lupinus

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #23 on: April 21, 2013, 07:23:45 am »
    US citizenship aside, he is entitled to due process. As I said initially, the fact his is a US citizen is just icing on the cake. Last I checked we gave resident aliens, tourists, etc. due process under the law just the same as a US citizen.

    His actions were criminal, not an act of war. Charge and try him accordingly. The line between spy/saboteur/terrorist/traitor and enemy combatant may at times be fine and occasionally blurry, but it's a line. And one that shouldn't go away. Once it does, you've opened the door for tossing out due process in the name of "public safety". And the lengths some members of government would love to take things in the name of "public safety" that is one hell of a scary prospect with no clear end in sight.

    As to Miranda, small potatoes to the idea he could be denied his due process. All it really means is that anything he says can't be used in court....and I doubt very highly they need him to say a damn thing to make it a five minute trial and all of 30 seconds for the jury to come back with a guilty verdict. Only issue I potentially see is if he does spill the beans about people that helped him, and that's the only thing that leads the feds to those persons, is if it could be argued as having been the fruits of a poisonous tree. I know that's typically related to fourth amendment violations, and I'm not a lawyer, but it's about the only issue I can see here arising from him having not been informed he can keep his trap shut.
    South Carolina

    Coronach

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    Re: Boston Bomber's legal status. Enemy combatant?
    « Reply #24 on: April 21, 2013, 08:14:38 am »
    I'll disagree a little, but this is "how I think it should be" as opposed to "how it actually works", partly because the latter is somewhat nebulous at the moment.

    I look at it like a flow-chart, that goes somewhat like this:

    Is the defendant a US citizen? Yes/No. If YES, then ask the following: can his actions be construed as waging war on the US, adhereing to or giving aid an comfort to its enemies? If YES, then charge with treason (per Article 3 of the Constitution). If NO, then charge with an appropriate crime in an appropriate jurisdiction.

    If the defendant is NOT a US citizen, then ask the following question: can his status reasonably be described as an unlawful combatant, whose actions can be construed as waging war on the US? If YES, then remand the case to a military tribunal for due process. If NO, then charge with an appropriate crime in an appropriate jurisdiction.

    Mike
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