Fox News is leading the right-wing media chorus baselessly claiming Dzhokhar Tsarnaev, the apparent bomber in the Boston Marathon attacks, should be indefinitely detained as an “enemy combatant,” even though legal experts maintain it is unlikely he qualifies for this designation.

Militarily detaining U.S. citizens apprehended in this country as “enemy combatants” for acts of terror is extremely rare and constitutionally questionable. Former President George W. Bush transferred the last U.S. citizen held in such a fashion to federal criminal court rather than have the Supreme Court rule on the matter. President Barack Obama, while not explicitly disavowing his authority to indefinitely detain U.S. citizens as “enemy combatants,” has publicly determined the practice to be unwise and contrary to American tradition and law.

Despite the legal uncertainty of the practice, Fox News host Sean Hannity declared that Tsarnaev should be held as an “enemy combatant” because “the evidence is obviously out there.” From an interview with right-wing commentator Ann Coulter on the April 22 edition of Hannity:

HANNITY: All right, I watch all this and I'm a little bit concerned because now he has got his Miranda Rights, the right to remain silent. I think it's a mistake not to treat him as an enemy combatant. The evidence is obviously out there. It's not like we need evidence for the trial because that exists so what's the point?

COULTER: Also, why not just shoot up the boat? If we aren't going to talk to him and get any information about the cell, about any foreign influence --

HANNITY: What's the point?

COULTER: They should have kept shooting when they caught him in the boat. Just get him in the automatic death penalty there. I mean, I totally agree with you. I've seen it happen a million times. Lawyers are cowards, you see them on TV. Opinions tend to ossify around one answer - a civilian trial, civilian trials work great.

HANNITY: I'm not worried about the guilty verdict. The guilty verdict is coming.

COULTER: I agree.

HANNITY: I'm worried about what does he know?

Hannity, unlike his fellow Fox News personalities, seemed aware of the constitutional issues at play, such as the right to not self-incriminate oneself at trial under the Fifth Amendment. Coulter, on the other hand, went on to say that Tsarnaev's sister-in-law “ought to be in prison for wearing a hijab.” Fox News host Brian Kilmeade called for "bugging U.S. mosques," questioned why racially profiling those with Middle Eastern heritage is not practiced, and claimed not all American citizens are "worthy of the constitutional rights that we have." Fox News' Eric Bolling advocated for submitting Tsarnaev to torture because he thinks the accused bomber “probably” became a U.S. citizen so he could "hide behind the criminal justice system."

Nevertheless, Hannity still baselessly claims there are links to domestic or foreign terrorist networks sufficient to meet the threshold of designating Tsarnaev an “enemy combatant” under the dubious legal standards currently available.

Multiple news outlets have reported that law authorities have no evidence of such "major terrorist group connections." In order to determine this without advising Tsarnaev of his right to remain silent - his "Miranda rights" - authorities invoked a "public safety" exception, broadened in 2010 beyond what the Supreme Court originally appeared to allow. Authorities have always been free to question suspects without advising them of Miranda, they just run the risk that any confessions gathered this way will be inadmissible in court. The “public safety” exception preserves the possible admissibility of relevant evidence for trial, even if the suspect remains unclear about his Fifth Amendment rights. Interrogations can and do continue even after suspects have been “Mirandized.” 

By clamoring for an “enemy combatant” designation, Fox News is arguing that this period of keeping Tsarnaev away from standard criminal procedure should be indefinitely extended to continue unsupervised fishing for terrorist links. Fox News is incorrectly applying this already sketchy legal authority.

Jose Padilla, accused of plotting a 2002 radiological “dirty bomb” attack, was apparently the first and last U.S. citizen captured on American soil to be held as an “enemy combatant” under the purported indefinite detention powers of the Authorization for Use of Military Force (AUMF), passed in the immediate wake of the terrorist attacks of September 11, 2001. This was the test case that the previous administration specifically yanked from Supreme Court review rather than hear a decision on its legality. Removed to the criminal justice system, Padilla was successfully convicted on all terrorism charges brought against him. This is unsurprising -- the federal government has historically been highly successful at interrogating and punishing terrorism suspects, even as it respects constitutional limits.

The current administration, while issuing a signing statement asserting it will not repeat this practice of indefinite military detention of U.S. citizens, signed into law the National Defense Authorization Act (NDAA) of 2012, which codifies into law the "unsettled status quo" that resulted when the Bush administration decided to try Padilla as a criminal. Accordingly, the closest approximation of what would be necessary for President Obama to hold Tsarnaev as an “enemy combatant” may be the U.S. Court of Appeals opinion for the Fourth Circuit, which examined Padilla's designation as such and that the Bush administration did not want to hear appealed.

In designating Padilla an “enemy combatant,” the Fourth Circuit held acceptable President Bush's determination that Padilla was “closely associated with al Qaeda,”  “possesse[d] intelligence...about personnel and activities of al Qaeda [that] would aid U.S. efforts to prevent attacks by al Qaeda,” and “represent[ed] a continuing, present and grave danger to the national security of the United States.” The 2012 NDAA codified this “enemy combatant” definition to include "associated forces" of al-Qaeda or the Taliban. Even with this expanded definition, Hannity's proffered justifications for designating Tsarnaev don't come close to the requisite threshold. Instead, the Fox News host offered the following:

HANNITY: Now both Tamerlan and Dzhokhar are ethnic Chechens. They were born in the former Soviet territory and came to the United States almost ten years ago. Now suspect number one, the older brother, according to his uncle, is the one believed to have turned radical first sometime about 2009 and later drawing his younger brother into a secret plot of violence and hatred.

Now according to his aunt, he recently went from praying no more than once a day to praying five times a day and neighbors and friends have also confirmed that they noticed his strict turn towards Islam in the past few years.

Now in addition we are learning that his American wife even converted to Islam for him and began wearing traditional Muslim garb shortly after and we will have much more on that this hour with Ann Coulter.

Now we have also found multiple Muslim extremist videos posted on what is believed to be the older brother's YouTube Channel. And another troubling piece of information to emerge is that the older brother traveled back to his native Russia in 2011 for six months.

In sum, Hannity incorrectly claims that ethnicity and an unspecified “secret plot,” along with one brother's practice of praying five times a day, YouTube videos, and trip to Russia are enough to classify the accused bomber as an “enemy combatant.”  

Obviously not all evidence must be presented before detentions and arrests -- that's what questioning and interrogations are for, after all. But even in extreme circumstances like the untested “enemy combatant” designation, the courts have stated some degree of suspicion of an affiliation to a terrorist organization related to al-Qaeda is necessary, if not probable cause. As explained by Benjamin Wittes, senior fellow in Governance Studies at the Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, without the necessary terrorist links, "it would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant."