Brian and Garrett Fahy

Approximately 30 seconds before the first explosion, he lifted his phone to his ear as if he was speaking on his cell phone, and kept it there for approximately 18 seconds. A few seconds after he finished the call, the large crowd of people around were seen reacting to the first explosion. Virtually every head turned to the east (towards the finish line) and stayed in that direction in apparent bewilderment and alarm. Bomber Two, virtually alone among the individuals in front of the restaurant, appeared calm. He glanced to the east and then calmly but rapidly began moving to the west, away from the direction of the finish line. He walked away without his knapsack, having left it on the ground where he had been standing. Approximately 10 seconds later, an explosion occurs in the location where Bomber Two had placed his knapsack.”

So reads paragraph 14 of FBI Special Agent Daniel R. Genck’s affidavit in support of the government’s two-count criminal complaint against Dzhokhar Tsarnaev, one of two Chechnyan brothers responsible for bombing the Boston Marathon, and the only one still alive to face charges. The White House announced Monday that Tsarnaev will be tried in civilian court on two counts: use of a weapon of mass destruction, and malicious destruction of property resulting in death. A few observations are in order.

First, White House Press Secretary Jay Carney said Tsarnaev cannot be tried in a military commission. Under the Military Commissions Act, Tsarnaev can be detained, designated an enemy combatant, and then face charges in an Article III court based on information gleaned from that detainment. The same administration that claims the authority to kill Americans via drone strike treats Tsarnaev, a demonstrated terrorist, as nothing more than a common criminal.

Second, reading the full text of the government’s complaint, it’s apparent why Tsarnaev should be detained in Gitmo as an enemy combatant. The complaint speaks of the impact of the marathon bombing on interstate commerce, but this explanation misses the mark: it’s about terrorism. The administration’s response ensures we will know less about Tsarnaev when the terrorist lawyers-up.

To get to the bottom of what happened here, and determine why the Boston Police, FBI, CIA, DHS, NSA and DIA failed to stop this, the government will have to explore areas far beyond the competency and security clearance of a 12-person lay jury. This is especially the case if it is discovered that the Brothers Tsarnaev had international assistance. Already a radical imam in Australia has been identified as a source of inspiration for older brother Tamerlan.

Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at