[Fishtalk]

Okay, since we’re on the subject, I am hearing all sorts of folks debate the issue of “enemy combatant” vs. “defendant” and the sides taken are on both sides of the fence.

I also know that Eric Holder, who I’ve no doubt takes bribes from people to NOT investigate them....he is the bag man for the Obama administration in fact....decided on the defendant status and right there I’m suspicious.

I’d like to see more information on this subject to clear my confused mind. Fox had some seriously conservative folks espousing the defendant status so this also confused me.

Might be a job for Kabar.

[TomGuy]

The difference my henge on the fact that Jihad Junior recently became a naturalized citizen, whereas old brother did not.

Intentional or not, he became a citizen on ‘September 11’, 2013.

[Was that some kind of subliminal message?]

[Cboldt]

I look at it from the point of view of asking why the various categories exist. "Enemy combatant," except for wartime, is a new category. If a person is categorized as an enemy combatant (this label can attach to a US citizen, see Hamdi v. Rumsfeld), they have different due process rights compared with a criminal defendant. Those difference appear in may places, but amount to how much evidence is required to justify detention and conviction, as well as changing burdens of proof and persuasion.

Sometimes the person and their actions don't admit a clear cut case of pigeonholing into enemy combatant or criminal defendant, and the government has to make a judgment call as to which category (and resulting incarceration and trial process) it thinks best suits the situation.

The enemy combatant category works better when the evidence is weak, or obtained under practices other than police work, or the government wants to detain the person "off the battle field" for an indefinite period of time, relatively free from interference from the Article III courts. This sort of circumstance has the appearance of the government treating the issue as a military issue, not a civilian issue.

The downside to enemy combatant categorization is that the system is relatively untested, it's new, and opens up opportunities for all sorts of new/novel legal challenges. It's also much less publicly transparent, opening up opportunities for allies of the defendant (not just personal allies, but also some who may not be allies per se, for example opponents of military trials for civilians - be they citizens or aliens - and those who claim the government is targeting Islam) to claim unfairness, rigging of the trial, and assorted other PR hassles for the government.

Those hassles and downside are worth it, for some suspects. The decision is highly fact specific. In the Marathon bomber case, I think the evidence will be quite strong, and the civil justice system is well equipped to conduct a public trial. I think the case will move much faster in a civil courtroom, compared with a military court that associates with the enemy combatant categorization.