The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al Qaeda, the Taliban, or associated forces. Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.The reason this is important to point out is that it demonstrates why its been significant for the Obama administration to refocus George W. Bush's "global war on terror" to a "war on al Qaeda." If that language restricting military detention to "Al-Qaeda, the Taliban, or associated forces" hadn't been included in the 2012 NDAA, folks like Lindsay Graham might have a legal case to make regardless of citizenship - even though the Obama administration has refused to use that provision when it comes to people with actual ties to al Qaeda.
Being able to label any act of violence as "terror" and then use that designation to replace the rule of law with the rule of war was the very reason the Bush administration declared a global war on terror in the first place. It gave them free reign to do whatever the hell they wanted. When folks like Senator Graham push for any "terrorist" to be tried as an enemy combatant, they are harking back to those days.
One of the things the American public is in the midst of witnessing is the very stark contrast between the Bush and Obama administrations. We've already seen that our law enforcement is up to the task of dealing with the Boston bombing. And now we're in the beginning stages of a very public display of how our courts are up to the task as well.
There's a reason why the neocons are squirming at all this. Here's the Boston Globe editors explaining that:
Some candidates seem to feel that asserting a manly contempt for defendants’ rights is a winning political stance. But it’s also hard to avoid the impression that McCain, Graham, and some other hawks are rehashing the battles of the Bush era, in search of vindication.The Obama administration is in the midst of undoing the damage of declaring a global war on terror. These guys know that - and they don't like it one little bit.
Its true that some of our emo friends have been so tied up in their own biases that the contrast they're seeing now caught them off guard and forced retractions of their "hair-on fire" within days. But I suppose that expecting them to learn from their mistakes going forward is perhaps too much to ask. No big deal though. Maybe they actually enjoy being wrong ;-)