This chapter establishes procedures governing the
use of military commissions to try alien unlawful enemy combatants
engaged in hostilities against the United States for violations of
the law of war and other offenses triable by military commission.
The Boston suspect is not an alien and therefore, cannot be tried as an "unlawful enemy combatant" .
"The term 'lawful enemy combatant' means a person who is —
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."
And he isn't a "lawful enemy combatant" either based upon my reading of the law above. Therefore, the GOP is advocating something that does not seem to be allowed by the 2006 law they designed and implemented in that he cannot be tried by a military commission.
As well, on CNN yesterday, someone was discussing the comparison of successful prosecutions via military commissions like Guantanamo (only 3? convictions) vs US civilian courts (500 convictions of terrorists) and maintained that it's a landslide in favor of the US civilian courts in terms of getting a successful prosecution.
The recent hysteria about how we shouldn’t be giving constitutional rights to non-U.S. citizens is a red herring. (It’s also worth noting, as Glenn Greenwald explained in an excellent post on Salon on Monday, that the Constitution requires according foreigners detained in the U.S. Constitutional rights – as the Supreme Court ruled as far back as 1886 and recently reaffirmed in its decision in Boumedienne v. Bush.)
Not only does the U.S. Constitution confer those rights, but based on the experience of our own time-tested federal justice system, sound national security policy demands it.
I don't understand beyond scoring political points why this is a debate