(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
He committed a crime just like McVeigh and Nichols did. They got a civilian trial. It's very easy for the GOP to say what they would do but they are not POTUS. A military trial for this guy would only make some people happy and some people would just use it to say " see Obamas a socialist and this guy did not get a civilian trial " .
No more excuses to evade the constitution and deny people rights. He's an American citizen. He is not a declared member of any enemy group of the U.S. He committed his crimes in the U.S. I am not giving the government any more excuses to exercize unchecked power.
Lawmakers have a serious problem with reality......that's probably why they stick to paperwork instead of fieldwork.
I didn't know what to think of not reading him the Miranda rights to the guy. When I saw that the ACLU was insisting on it, I knew that is was a bad idea. The ACLU is as anti-American as these two hell-bound brothers.
He will, after the spooks and feds have asked them if there's anything else we should know immediately to protect Americans. Then he'll have his rights read to him. And then he will get a civilian trial. Stop sounding like tyrants asking for a drumhead trial. If our justice system is not equipped to deal justice out to the truly guilty in a situation like this, then we might as well completely go back to the drawing board on it..
This is my opinion...
Dzhokar Tsarnaev should be treated just like any other terrorist. He should be stripped of his citizenship. He obviously did not uphold the pledge he made. He had no considerations for the people he murdered and maimed. None should be made for him. He doesn't deserve to be awarded the rights and privileges of a United States Citizen as he received that citizenship under false pretenses. If anyone he'd claimed as a friend had been in the crowd at the finish line, he'd have greeted them with a smile and walked away as they were blown limb from limb. He came to this country and was given opportunities that a lot of U.S. born citizens have only dreamed of, and out of ignorance, dishonor, and a callous disregard for human life, he used those opportunities to wreak terror upon the very people who gave him those opportunities.
I suspect the parents knew what was going to happen and that's why they left the U.S. Now they are claiming their sons were set up. I find their response highly offensive. They don't seem to have any true regret over what happened to the victims. I hope that they are never allowed to return to this country. Not for any reason.If they want to see their son then let them watch the news to do so.
What's really a shame is that this episode of terrorism will most likely have a long term effect on immigration and those people that legitimately want to make a life for themselves in the United States.
To the wounded, both mentally and physically. May you have peace in your hearts and minds. May you heal speedily. Know that across this nation and across this world, there are those of us that cry for you. Worry about you. Pray for you. Share your anger. Grieve with you,
and rejoice that you have survived.
Lastly I am sickened that anyone could ever possibly believe that killing innocent men, women, and children is acceptable. There has got to be something rotten, something broken inside them.
Read the boy his rights...do this trial RIGHT...according to the constitution...ANYTHING less is criminal
He is a legal US citizen. He should be read his Miranda rights and have the right to an attorney. For him, this is not a Foreign Terrorist attack, it's an American Terrorist attack.
GOP Lawmakers want him handled under military law so they can torture him for answers.
He's not an enemy combatant, he's a disgruntled American. I suspect there are many of them out there.
To be an "enemy combatant" he would have to be somehow tied to an "enemy"...and traditionally that would also mean an identified enemy with whom we are at war. Now, we COULD claim that we are at war with terrorism, but that's pretty flimsy ground since there is no country or government named Terror. While it may seem handy to claim he's a member of some nebulous terror cell, thus far we've seen nothing that ties him directly to any such known creature.
The point is that every time we allow folks like this to force us to abandon our principles in the interest of beating the truth out of them, they win. They cannot win in the streets, but they can de facto win when we sell out our own Rights in order to trample theirs. This man is a suspected criminal. It is alleged that he committed criminal acts, and we should proceed just as we would with any other criminal. While the crimes are heinous, they are, nonetheless, crimes. To treat him differently only glorifies him, and says we're willing to sell out in the interests of expediency.
He's not an enemy combatant, he's just a criminal. Other than his alleged methods, he's no different than many others who killed and injured many. John McCain should remember how he was treated as a POW...after all, his jailers didn't follow the rules either...and if we're going to claim to be a truly civilized society, the first thing we need to do is follow our own rules and not succumb to a mob mentality. I have every confidence we can properly handle this criminal appropriately by taking him into the courts of the land and prosecuting him for the crimes he's supposedly committed.
Reading of the Miranda Warning ("You have the right to remain silent...") doesn't grant you the named rights, you already have them as a citizen. It isn't like they are invoking some magic protection that didn't exist before the words were spoken. You can refrain from making incriminating statements whether or not you have been Mirandized; having heard the Miranda Warning is not a prerequisite for the fifth amendment. You can also refuse to speak without counsel, even if they haven't told you this. Really, these rights just are, they don't need to be summoned into existence.
Most people who have ever seen a TV police procedural know this. Anyone who has passed the US naturalization test should certainly know it.
This guy will blame it all on his brother making sure to appear as a simple accomplice, a dummy who followed the other guy who was the evil insurgent brain of all this. Three dead, horrid as it may sound, is no war, so exaggerations to overstep the law shouldn't be allowed before knowing full well what he has to say. That would be no justice. These things do happen in societies of hundreds of millions of people. It is the authorities' business to find out and prevent them. A kind of "supervision" of potential such people by trained social workers is a must. It would be no harm to anyone's freedom, just a measure of protection like an ounce of prevention is worth a ton, in this case, of cure!
Sorry guys, for better of for worse, Dzhokar is an american citizen. American citizens have rights, no matter how heinous their crimes. To deny this citizen his rights makes all of us less secure in ours. Miranda warning or not, he is going to be found guilty. I can see no other outcome.
You don't have an "enemy combatant". You have a kid who was taken in by his older brother and found himself in the middle of a nightmare. The person who was the enemy combatant is dead. This kid just gets to take the punishment for him.
YUP. Gitmo bound; Bye bye, no visits, no phone calls no nothing and you brought the whole mess on yourself AND killed your brother in the process. Sweet dreams!
Youuu, What's an enemy combatant? Check out Systemas Spaznaz Training on google search. See US feedback with UK feedback and Italian feedback? That should make these people enemy combatants also!!
Just read that he went to class and partied as if nothing had happened!!
This guy needs to be brought to justice but make sure it's NOT the death penalty. He should spend the rest of his miserable terrorist life in jail in solitary confinement and make sure, after 20 years or so, that some other inmate gets a hold of him during shower time.
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!
“This is not a foreign national caught on an enemy battlefield, but an American citizen arrested on American soil,” he said in a statement."
Yes he is an American citizen, which in itself is driving the right wing (and CNN) crazy with conspiracy theories too foolish to print. Starting with interviews from gossiping high school girls who from time to time got SPA facials from this person's mother.
Seriously, are they really having this discussion? It can only be for the purpose of further gutting of our human and civil rights. It takes maybe 20 seconds to read a miranda warning. They're still lying just like they were under bush. Are you still buying?
OUR RIGHTS!!? For me, personally, our rights could be what causes the downfall of our great country! 2nd amendment has been perverted, twisted, interpreted, by those using it as an excuse for personal gain, MONEY! WE, the people, according to whatever poll you look at, shows that the vast majority of US want change! YET, nothing gets done or passed, WHY? OUR "elected children" most of them, have been bought off by lobbyists, special interest groups, etc., and we continue to relect them? WE want the same justice for those that are mass murderers, terrorists, when WE know that our legal system has alot of problems! WE want justice but NO death penalty, and then complain about the money spent to put these animals in prison for the rest of their lives, and get TV, an education, and other "benefits"!? Again, for me, there has to be a "separation, different set of laws" for animals like this and the death penalty would apply!
DHS and FBI both knew about the bombers and did nothing
let's see; public lynching or secret torture? i say make him go away so we don't have to watch a farcical soap opera so everybody can get their piece of the pie. it didn't take two minutes and we have forgotten the victiims and are back into political division, reps/dems, right/left. so sad
I don't think the point is to deny him a trial. They have enough evidence to convict regardless what he says or doesn't say. The point is to question him to find out if there are any additional threaths. We need to find out if they acted alone or if they are part of a group.
He lost all of his rights that this country so generously gave him when he deliberately and diabolically attacked the homeland and its people. Period.