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The White House said Monday that Dzhokhar Tsarnaev would not be tried as an enemy combatant, adding that the Boston Marathon bombing suspect will be prosecuted through the U.S. civilian system of justice, where the administration has had success in the past.
"Since 9/11 we have used the federal court system to convict and incarcerate hundreds of terrorists," White House press secretary Jay Carney said Monday.
"It's actually a no-brainer on so many levels," says former DHS official Juliette Kayyem. "This is a strong case, so why would you abandon the normal system of criminal system, but for symbolic reasons?"
Tsarnaev will be charged with one count of using and conspiring to use a weapon of mass destruction against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death. If convicted, Tsarnaev could face the death penalty.
The charge is not a terrorism charge. A weapon of mass destruction is broadly defined in the law, it essentially refers to any weapon that is not a firearm, or a firework.
Given the charges against Tsarnaev, all the court needs is an evidentiary case, said Kayyem.
"The government does these cases all the time. They're good at it, they're strong at it, and then they resolve it," said Kayyem.
Trying Tsarnaev through another system, say as an enemy combatant because he is a terrorist, or you want to try him symbolically, would raise a lot of legal questions, said Kayyem.
Moreover, trying him in any other way would essentially "undermine what makes America a pretty good country, which is that we have a pretty good justice system that can even convict the worst of the worst," said Kayyem.
Law enforcement has yet to present a case, and details regarding whether the Boston Marathon attacks were part of a foreign organization are not known at this time. If it is established that the Tsarnaev brothers were acting on behalf of, or in conjunction with a foreign organization, Dzhokhar Tsarnaev could then be charged as an enemy combatant.
But "the administration is pretty confident they won't have to do that, and they don't want to do that," said Kayyem.
Part of the post-9/11 world is about "reasserting the American judicial system over a lot of these terrorism cases," added Kayyem.
The complaint filed today was left open for other charges because the investigation is ongoing.
"But the complaint's pretty solid," said Kayyem. "We don't have to get into motive, we don't have to get into jihadist movement. Make the case, get a conviction, and show that the system can work against these cases."