Sen. Lindsey Graham (R-S.C.) has suggested that Ahmad Khan Rahami, the naturalized citizen of Afghan origin who was just arrested for planting the pipe and pressure cooker bombs in New York and New Jersey, should not be criminally tried but instead held as an "enemy combatant". I disagree on both constitutional and practical grounds.
Let me make clear that I'm no Rahami apologist. I detest that he is naturalized and yet allegedly hates America. I detest the flawed vetting system that permits a family such as his to come as refugees, only to exhibit such disaffection for their adopted homeland (and it appears that much, perhaps all, of his family is both dysfunctional and unassimilated). I detest that he is a deadbeat father who has never supported his native-born child. I detest that he tried to use the immigration system of the country he hates to try to bring in a new Pakistani bride and even tried to twist his local congressman's arm to push the system even harder to get her here.
But despite all of that, he is a citizen and the constitutional protections afforded to citizens must apply. Whether or not my sense of this would change if he had been found on the battlefield in Syria or Iraq or Afghanistan shooting against American troops, I don't know — but the question is theoretical, because that isn't the fact circumstance. He did what he did here, in the homeland.
Perhaps Rahami should never have been naturalized. The answer to that question rests in large part on when he naturalized. If, as is likely, he was a child "ride-along" to his parents' naturalization, then I accept that he could not as either a practical or legal matter have committed fraud to obtain the naturalization; the fraud would pertain to his parents, not him.
Certainly at this juncture the question also looms large about whether his parents should have been afforded refuge/asylum in the first place. Quite possibly not. But that changes his circumstance not a whit at this late date.
On a practical level, were Rahami to be held as an "enemy combatant," exactly where would we put him? The Obama administration is rushing pell-mell to empty out and close the terrorist brig at Guantanamo before the president's term is up, and damn the consequences.
Instead, Rahami should be charged criminally with several counts of attempted murder (both of the police he fired on when apprehended, and the civilians wounded by his bombs). He should be charged criminally under the appropriate federal terrorism statutes. He should be charged under the federal statutes relating to use and attempted use of weapons of mass destruction for the bombs both deposited publicly and found in his home.
If an investigation establishes any linkage with international terrorist organizations that have taken up arms or engaged in hostile acts against our country or citizenry, Rahami should even be tried for treason and, if convicted on that charge, stripped of his citizenship (see 18 U.S.C. Sections 2381 through 2385, and 8 U.S.C. Section 1481).
But above all, he should not be deprived of his constitutional protections. To do so demeans us all and renders the Constitution just that much more fragile. Isn't it fragile enough after eight ruinous years of activities by this extra-constitutional president?