(CNN) - As Boston celebrated the capture of a suspect in the marathon bombings Friday night, a debate erupted in Washington over whether military or civilian law would best handle Dzhokar Tsarnaev.
“This guy didn’t rob a liquor store. He wasn’t working for the Mafia,” Sen. Lindsey Graham, R-South Carolina, said Saturday on Fox News. “My God, they were at war with us, we need to be at war within our values and within our laws.”
He and several other Republican lawmakers called on President Barack Obama and prosecutors at the Justice Department to treat Tsarnaev, at least initially, as an enemy combatant under military law – and without certain protections such as an attorney – rather than through the civilian courts as a criminal suspect, where his route begins with a reading of the Miranda rights. The designation as an “enemy combatant” has precedence and would be appropriate here, Graham and others say.
The hospitalized Tsarnaev is in federal custody, and prosecutors are preparing terrorism and possibly other charges against him, a Justice Department official told CNN. He could also face state-level murder charges, but the death penalty would not be an option under Massachusetts law. Federal authorities could pursue the death penalty.
Twelve hours after capture Tsarnaev had not been read those Miranda rights, which include the right to remain silent, the right to an attorney regardless of financial circumstances and the warning that any statements can be used to aid his prosecution.
A Justice Department official said federal prosecutors would use the public safety exception to the Miranda rule, which allows investigators to question a suspect before apprising him of his rights when they believe there is an imminent public safety threat. Federal officials called in the interagency High Value Detainee Interrogation Group, which includes investigators from the FBI and CIA who specialize in collecting intelligence from terrorism suspects, to question Tsarnaev.
After the Friday capture, Obama commended authorities’ efforts and said the surviving Tsarnaev would move through the court system.
"When a tragedy like this happens, with public safety at risk and the stakes so high, it's important that we do this right,” he said. “That's why we have investigations. That's why we relentlessly gather the facts. That's why we have courts. And that's why we take care not to rush to judgment - not about the motivations of these individuals; certainly not about entire groups of people.”
In addition to Graham, Republicans Sens. John McCain of Arizona and Kelly Ayotte of New Hampshire, joined by Republican Rep. Peter King of New York, commended investigators for not reading Tsarnaev the Miranda rights but said they were concerned investigators would soon do so.
“We have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect,” they said.
Separately, King said Friday night after the suspect was taken into custody, “The fact that these terrorists were from overseas, living legally in our country for a period of time, and the fact that there was no federal intelligence or chatter prior to the marathon bombings demonstrates once again the Islamist terrorist threat to our country from within our borders.”
Sen. Saxby Chambliss, R-Georgia and a member of the Senate Select Committee on Intelligence, issued his own statement saying, "This is not an ordinary criminal case, and a brief interrogation under that exception is wholly insufficient. Our courts, including the Supreme Court, allow detaining and interrogating terrorism suspects as enemy combatants, regardless of citizenship, and there is no reason to not follow that precedent here."
Juliette Kayyem, a former assistant secretary of Homeland Security and CNN national security analyst, said Saturday that to debate the issue was “absurd.”
“I think it’s an important statement especially after what this city went through to say, ‘Yup, now you’re just a normal criminal and we’re just going to put you through the process,’ ” she said, adding that the initial use of the public safety exemption was justified.
Sen. Carl Levin, D-Michigan and the Armed Services Committee chairman, noted an enemy combatant declaration could be made under the 2001 war declaration of Congress, which authorized action against al Qaeda, the Taliban and related groups.
"I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al Qaeda, the Taliban, or one of their affiliates," he wrote Saturday in a statement which appeared to rebut the GOP senators' statement.
"In the absence of such evidence I know of no legal basis for his detention as an enemy combatant. To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes."
The American Civil Liberties Union said the U.S. should “not waver from our tried-and-true justice system, even in the most difficult of times. Denial of rights is un-American and will only make it harder to obtain fair convictions.’
"Every criminal defendant is entitled to be read Miranda rights,” the group said in a statement. “The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule. Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel.”
Rep. Adam Schiff, a California Democrat and a member of the House Intelligence Committee, said investigators were appropriately using the public safety exception but should not declare him an enemy combatant.
“This is not a foreign national caught on an enemy battlefield, but an American citizen arrested on American soil,” he said in a statement. “The Justice Department has demonstrated a far greater ability to successfully prosecute suspected terrorists in federal courts than the military commissions have thus far been able to show. Nothing must be done to compromise the public safety, the ability of prosecutors to seek justice for the victims or our constitutional principles.”
In recent examples of domestic terrorism handled by the Obama administration, individuals initially questioned under the public safety exemption were later tried in civilian court rather than held as enemy combatants. Umar Farouk Abdulmutallab and Faisal Shahzad were tried and convicted of their foiled or failed bombing attempts – Abdulmutallab for plotting to blow up an airplane on Christmas in 2009 and Shahzad for his 2010 attempt to detonate a bomb in Times Square.
“The FBI has been very successful even after giving the Miranda warnings to these subjects to get them to talk about what they’ve done, to get them to cooperate,” said Tom Fuentes, a former assistant director of the FBI and CNN law enforcement analyst.
The interrogations, he said, would be focused on public safety because “we don’t know if they’ve placed additional devices, booby traps or have a separate cache of weapons and explosive material somewhere in the Boston area.”
“They really, to be frank, they don’t need his confession to prosecute and convict him,” he said. “There’s going to be more evidence in this case than you’d have in almost every other case that you have because they’re on video, you have the forensics, you have these murders of police. There is … no need for the Miranda warning in this case. ”
It was not clear how long the public safety exemption could be used. Attorney General Eric Holder wrote in a 2010 memo the FBI believed “that in light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation than would be permissible in an ordinary criminal case.”
The brothers were immigrants to the U.S. from the Russian Caucasus, an area that includes Chechnya and Dagestan. Tsarnaev was born in Kyrgystan, came to the United States in 2002, and became a citizen on September 11, 2012. His older brother was not a U.S. citizen but was in the country legally.
– CNN’s Carol Cratty, Ted Barrett and Deirdre Walsh contributed to this report
It won't matter if they do or if they don't. By all accounts, this kid is no dummy. He is an American citizen, like it or not, and is smart enough to know he doesn't have to say a thing to anybody. I will be very surprised if the first thing out of his mouth is not, "I want to speak to an attorney." Actually, I'm surprised that Gloria Alred is not at his bedside already.
Forget about his Miranda rights. This clown is toast no matter what. I want to know more about who flubbed the investigation of the older brother and allowed him to carry out this attack. His uncle sure knew the kid had become radicalized. Nobody interviewed him? Shades of 9/11 incompetence all over again.
Just to be clear. This guy has the Miranda rights automatically right? Even if they don't read him the warning, he still actually has a right to remain silent as far as I understand. I mean they are rights for a reason. You get them. Period.
Am I wrong on this? Just asking.
The public help capture the so call bomber, this man wasnt afraid of the police, an if he wasnt wounded the police never would capture him nevertheless i dont think its over yet, it maybe or may not be who knows. whos going to read the police their miranda rights.
Here the Republicans go again, trying to portray themselves as the "tough guys" yet again. It`s all about their self image and what they wrongly believe the public respects. This perp is going down. We have so much video, eye witness, & forensic evidence against him that its not funny. We could read him every warning in the book and he`d go down. Now, if the GOP wants to TORTURE him, they should say so. If they believe he`ll reveal some organized, massive pressure cooker /schapnel bomb conspiracy plot to attack all 50 states then they should say so. But I think American values have won. We have him and we didn`t need to give up our soul [our principles] to find him or to convict him. He doesn`t want to die, if he did, he`d have blown himself up. As he recovers in that hospital, this 19 year old will get scared and will easily be intimidated into spilling his guts even AFTER being Mirandized. Any court appointed lawyer will tell him he has to sign like a bird to have any chance given what he`s facing.
Ayotte, McCain & Graham need to zip it. They don`t know the evidence and it IS NOT their job to make or influence these decisions. The principles at stake are bigger than their inflated egos.
Kind of a funny stance for Mr. Graham who is anti-drone (like Mr. Paul) because the victim doesn't get the "full protection of the law". Just who is the "they" Mr. Graham is referring to that are "at war with us"? The Chechans? The Russians? Immigrants? U.S. citizens? People of the Islamic faith? This ia an American citizen (you know, the ones he doesn't want exposed to drones), yet he would deny this arrestee his Miranda rights.
Inconsistencies- the GOP is so full of them.
It is easier to understand when you grasp the GOP is simply crazy and without direction anymore.
YES, this is the USA and we should obey our own laws. This is a 19 yr. old who was badly influenced by an older brother. He was in college and had expressed a wish to be a medical doctor. Let us temper justice with mercy.
C'mon, these guys set off bombs that killed people, threw bombs at police, shot at police, killed a cop etc. This survivor did not do it alone, he at least was with his brother in all this, so there was a conspiracy. How many dots need to be connected to conclude that this guy is a terrorist. Heck, Bush declared Jose Padilla to be an enemy combatant with less to go on. Fly this guy to Gitmo as soon as he is healthy enough to go and screw reading him a Miranda bed-time story.
If the original U.S.S.C. ruling in Miranda is valid, then this is just another encroachment on the liberties, rights and freedoms that were supposedly guaranteed by the US Constitution. It is American soul itself that laid bare by its tolerance these abridgements that flow from America´s tolerance of, for example, TORTURE, that makes a public mockery its own vain belief in its own moral superiority.
He should get every right afforded to any American under the Constitution, as he is an American citizen.
My understanding of Miranda, is no big shakes about not Morandizing him, because that just means anything he says cannot be used against him in a court of law. Pretty sure the vids of him dropping the backpack, the carjack victim's testimony and the eleven billion cops he was shooting at, will provide ample evidence he is guilty.
Of course, Ms. Graham being a member of the GOP, wants to apply the rules of the Constitution on a selective basis.
They do it every day against natural born American citizens, known inside the Fox bubble as "anchor babies".
So very Republican!
In a word.....NO!
I assume the McCain/Graham Hour formerly known as Meet The Press will be filled with absurdities from the Senate's own Beavis and Butthead.
John, you lost. Lindsey, you never ran. Both of you – go away, you are irrelevant.
It is simple – read him his rights.
He is a US citizen and he should be brought before our justice system. It is time to stop tossing aside our values in the name of security. Since 2001, we have allowed our government, under both the Bush and Obama administrations, to pay no heed to our Constitutional principles in the name of the war on terror. It is time to take those values back, and it starts here.
Some have cast the war on terror as a war against people who hate what America stands for (paraphrasing Cheney.) Well, if this is true (which I highly doubt) then they are winning. We hold people indefinitely as "suspected terrorists," paying no heed to the 5th and 6th Amendments. We ignore international agreements, and now we are debating whether to strip those rights away from one of our own.
If they do not Mirandize him, then I will feel ashamed of my nation, my president, and those of us who refuse to speak up.
Like it or not this person is now a US citizen and it is setting dangerous presidents if they do not have to read him his Miranda rights. He is a legal US citizen here legally and I do not see how this can be bypassed period. I hope he gets the death penalty but we should not deny him basic legal rights that were granted by the Supreme Court in or around 1970. This should further put our immigration laws under scrutiny and exactly who in the h*ll we are letting in this country, legally or otherwise.
What difference does it make? To quote Hilary, and this is ridiculous just like all of the other terrorists that the president sympathizes with, but don't group them all in the same frame, give them a pass. Shame shame shame for the United States of America and to the republic for which its supposed to stand....
If there is no lawyer present, they can use all sorts of interrogation techniques on him.
There is no debate: fools -yes give the poor boy his rights. Victims and terrorist haters – F him.
I see no reason at all for the U.S. to even have Miranda rights. If you are an American and not a terrorist and have not lived in a cave for the last 20 years you know your rights. Besides if someone is not given his/her rights and confesses to a crime I don't think I will cry.
Those funny funny republicans, always wanting what they want when they want it.
He not deserves Miranda Rights, he has the right to Miranda Rights. As a nation we are going to pay for this if he does not get his Miranda Rights. What are we becoming in this country?
I know, as an American, I have the right to remain silent. But I still believe that it's important it's stated.
The problem is Obama has been at war with our Constitution since he was an Illinois elected official.
this suspect is a US citizen, if his rights are suspended, the entire nation suffers.. i feel certain this means the suspect is not guilty.. and this is exactly why he has rights.. and also, this is why he cannot speak.. they are silencing a patsy.
Our own government is at war with the US Constitution and has been since they passed the Federal Reserve Act, the 16th Amendment, and many other laws in the 20th century.
Have him put thru the legal system, as anyone else would be. If he gets off on a technicality, then have the CIA take care of him.
Or, pull the cops, announce his release time and location, then let the people of Boston welcome him back into their open arms.
Really? Already questions such as this? This is sickening...why do we do this to ourselves...create polarization when this tragedy should do nothing but bring us together and remind us of what makes our country so great. Questions like this are a slap in the face to the officers who worked tirelessly to restore our safety.