(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
ACLU will more than likely defend this suspect now. Even when both brothers admitted to the bombings in their car jacking! It seems the ACLU is very supportive of terrorists in this country. WHY??? ACLU why not instead support and defend those people killed and grossly maimed in these bombings by these terrorists?
Here's what I find interesting, he's an American Citizen (much like Timothy McVeigh, James Holmes, Adam Lanza, Charles Manson, etc), but because it's not an "ordinary" situation, he does not have the right to remain silent, nor the rights to an attorney.
I'd be concerned over such things, is not so much for his sakes, but when we start cherry-picking civil liberties, it becomes precedence to one day strip them from the rest of the people under "special circumstances".
Graham and the rest of them would love to see the state have absolute authority and answer to no one but themselves. We have a bunch of crazies at the wheel in our country and few seem to care. This guy was accused of a crime and has the full protections of law.
I really find it interesting that the government demands we obey the law but they treat it with contempt.
The Miranda right issue is not a big issue. It's forward looking anyway. The police have enough evidence that precede any violation anyway. All a miranda violation does, if in fact there was a miranda violation, is taint the evidence gathered from the questioning itself. It won't matter whether a violation occurred or not in this case.
Miranda rights are not required to be read by the arresting officer(s) unless the suspect is questioned or will not stop talking in an incriminating manner.
This just in! Next in public safety exceptions: needles under the fingernails and glowing coals to the feet.
Let us not forget that the person in custody is an American citizen. He is no longer any threat to the United States. Regardless of how horrible the crimes he is accused of were, he still maintains his constitutional rights.
Do we really want to live in a country where US citizens, residing in the US, can be arrested and denied their constitutional rights even before they have been convicted?
Sadly but true. He is a U.S. Citizen and should be read Miranda. The ACLU will probably blame the victims of being in the wrong place at the wrong time.
The law is the law, he is a naturalized american citizen, he needs to be given his miranda rights and a public defender.
Reading someone "Miranda rights" has nothing to do with them having or not having those rights. Those are guaranteed by the Fifth and Sixth Amendments. The Miranda warning is just something that is required when making arrests to make certain that the person being arrested knows he or she has those rights.
Senator Graham read the Constitution. As son as they start deciding who does have and have not rights we better be prepared for Tyranty. Citizens have rights protected by the Constitution.Lindsey read up
Is anyone going to ask congress what loopholes these terrorist jumped through to get the guns and explosive material they did to commit these acts of terrorism? And how does Congress answer how the FBI had awareness of at least one of the brothers as far back as 2011 based on a foreign intelligence organization's warning to them that at least one of the terrorists was an Islamic radical and yet he was obviously still able to buy guns. Lots of them. All kinds of calibers and ammunition. Automatic, semi-automatic and explosive material. While we're at it, what was their immigration status when they were buying guns and ammunition in quantity? Close the loopholes Congress. Don't make immigration to the U.S. a rubber stamp process and get our government organizations to talk to communicate better because this was a failure on the FBI's part that cost lives and millions of dollars.
This is an act of terrorism, just as was Ft. Hood shootings and Benghazi and was not jaywalking or a back alley mugging. When will the leadership understand we are at war with terrorists?
Where were the Miranda rights for Anwar Al Awlaki and his son? Mind boggling...
throw away law and what are you protecting?
“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. ”........this statement scares me. He's a card carrying American citizen, like it or not you have to treat him like one. I personally hope he dies before it's relevant, but once you have the card (unfortunately in this case) the Constitution applies.
I don't think terrorists get mirandized
I've posted this before, but I think it's dangerous to not give him the Miranda warning. He's lived here for years, he probably knows about the Miranda rights from the huge number of cop shows on TV. Giving the warnings don't give the suspect rights – THEY PROTECT THE GOVERNMENT'S CASE by preventing his lawyers from getting his statements excluded. The supreme court's Miranda exception is very narrow, they ruled that statements can be admissible if the police asked a question they needed an immediate answer to for public safety reasons before they get around to giving the Miranda warning. Given that the Mayor of Boston has already Tweeted that "everything's OK", the government may be on shaky ground claiming that the questions he is being asked are so urgent that they can't spend 30 seconds on the warning. They may be opening an avenue of appeal for him.
Do we usually give Miranda to enemy combatants for a foreign adversary who don't follow the geneva convention? Constitution? How about the Geneva Convention. This is international warfare, not some thugs who knocked over a 7-11.
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.
Interesting. This guy is a US citizen. Wasn't it the GOP who was just harping on Obama for ignoring the rights of US citizens and treating them as enemy combatants? The hypocrisy in politics continues to skyrocket.
Regardless of the crime, everyone should be read their Miranda rights. He has the right to be silent, anything he says can be used against him in a court of law. He has the right to an attorney. If he cannot afford an attorney, the state will provide him one. This guy was taken to a hospital first. I think once he has been stabilized, his rights can be read. It doesn't really matter when his rights are read, so long as they read him his rights before they start interrogating them. If his rights hadn't been read, anything he says before then is inadmissible in a court of law.
Timothy McVeigh was Mirandized. But he wasn't a muslim with a funny name so republicans wouldn't complain about that. Imagine the precedent it would set if an American, arrested in the United States by the FBI was denied habeas corpus. What is everyone afraid of? This is an open and shut case. We can prosecute and convict him without sacrificing our ideals. That would send a strong message to the world. He'll get his due.
I'm concerned that in your anxiety to prosecute, you are surrendering you rights for defense. If you proceed under a non Miranda right, you then may be opening a U.N Human Rights issue.
I am a newcomer to America, but the one thing I learned years ago, is about those who call themselves "Conservatives".
Conservatism (the Extreme Kind) is based on 5 principles:
(1) Hate and Fear
(2) Hate and Fear
(3) Hate and Fear
(4) Hate and Fear
(5) Hate and Fear
Then there is a distant 6th. and 7th.
(6) The implicit belief that Time Travel will address their needs
(7) Lack of Compassion
The US is way to lenient on giving its citizenship. You want to fly in , have your kid and fly out – oila, we give you a citizenship. Work your butt off for 20 years and we call you an illegal alien. Some half brained moron does not do their paperwork properly and we give a chechnyian terrorist a green card. If you declare war on the US, ie mass murder bombings, you get a military trial and if found guilty – bullet in the head.