Yesterday the White House settled the debate about whether Boston Marathon bombing suspect Dzhokhar Tsarnaev would be designated an enemy combatant with a forceful no.
Instead he will be tried as a civilian in federal district court, charged with using weapons of mass destruction (with more charges likely to follow). At Tsarnaev's hospital bedside, Judge Marianne Bowler informed him of the charges, then read the defendant his rights and appointed him a lawyer.
If Tsarnaev had been assigned enemy combatant status, he would have been subject to military law and could have been detained without charge until his status as an unlawful combatant was determined by a military commission. Tsarnaev would have had access to a lawyer in such an instance, but the trial process itself would have likely been extended considerably. Of the 169 detainees still being held at Guantanamo Bay as of 2012, some of whom have been held for over a decade, only 6 have been formally charged.
But the administration decided against using any of the exceptions available to law enforcement officials for use in the questioning and detention of terrorism suspects. During the past decade these practices—most notably enemy combatant status—have been the subject of contentious debate. Occasionally, newly strengthened counterterrorism laws have been struck down as unconstitutional.
Efforts to grant law enforcement agencies new leeway in dealing with terrorism suspects haven't been confined to the United States. As Laura Pitter, a counterterrorism adviser at Human Rights Watch notes, new counterterrorism laws have been enacted in dozens of countries since 2001. Here's a range of measures in six countries.
In 2002 the Knesset passed the Imprisonment of Illegal Combatants Law, which allows the chief of staff of the Israeli Defense Forces to detain any individual who "takes part in hostile activity against Israel, directly or indirectly" or "belongs to a force engaged in hostile activity against the State of Israel." The individual can be held on the assumption of activity, not proven guilt, and can be held without charge as long as the hostilities continue.
An individual suspected of being an "illegal combatant" can be detained without judicial review of the detainee's status for up to 14 days, and can be denied a lawyer for up to 21 days. Further detention of a suspect must be renewed every six months by a judge, but detention can continue indefinitely.
Israeli detainees suspected of threatening national security can be detained for up to 4 days before being presented to a judge. Palestinian residents of the West Bank and Gaza may be detained without judicial authorization for up to 8 days, and up to 14 days if they are suspected to be an illegal combatant.
Critics of the 2002 law believed an underlying motivation behind the law was to legally justify the continued detention of two Lebanese prisoners, Sheikh 'Abd al-Karim 'Obeid and Mustafa al-Dirani, so they might be used as "bargaining chips" in future prisoner exchanges.
Under Russian law, a person suspected of terrorist activities can be detained up to 30 days without charge—20 days more than someone suspected of other criminal offenses. In terrorism-prone regions like Chechnya and Dagestan, individuals are often held without charge indefinitely for an offense as minor as not having proper identification documents. Many are never registered by the police as having been detained; most are not given access to a lawyer.
Under the 2006 Terrorism Act, law enforcement agencies can detain a terrorism suspect up to 14 days without charge. The suspect can be detained initially for 48 hours; then a magistrate must approve further detention in 7-day increments up to 14 days. The police can deny access to a lawyer during the first 48 hours if they believe such access would interfere with evidence collection or lead to the alerting of other suspects.
Indian counterterrorism laws, amended in 2008, allow the government to hold terror suspects in detention without being charged for up to 180 days, 30 days of which can be spent in police custody. The current figures are double what they were prior to the 2008 amendments. In the aftermath of the Mumbai terror attacks, some suspects were held for three or four months in police custody, prompting claims from Indian politicians, Human Rights Watch, and others that detainee rights were being infringed upon.
The Interior Ministry can detain a suspected terrorist without charges or access to a lawyer for up to 120 days; a judge can renew the detention indefinitely. Those brought to trial stand before a Specialized Criminal Court, instituted in 2008, that is tasked with adjudicating all cases involving terrorism. The trials take place in private, and the accused are not allowed access to legal counsel while proceedings are underway. The court can hear witnesses and experts without the accused or their lawyers being present. And all court decisions are subject to "executive approval," allowing the Interior Minister to release pretrial detainees, as well as convicted prisoners, without the assent of the court.
In 2009 during the first set of trials held by the Specialized Criminal Court, 330 suspects were convicted and only one was acquitted. Terrorism detainees must also undergo "rehabilitation," regardless of whether they've been convicted of a crime, if ordered to do so by the Interior Ministry investigators. At designated rehabilitation centers, detainees and convicts are educated "in order to rectify their ideas, and to deepen their attachment to the homeland."
Terrorism suspects can be held incommunicado for as long as four to six months. The police must notify family members and any legal counsel within 24 hours that the individual has been detained, but they are not required to disclose where the person is being held or why.