(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
Yes, you have to Mirandized Dzhokar because he is an American citizen on American soil. The only exception to the Miranda Rule is consideration of a public safety exception (Miranda vs. Arizona). A defendant has to knowingly waive his/her Miranda rights as an American citizen.
Dzhokar is entitled to "due process" as an American citizen despite the horrific crimes he committed. He will undergo state-level murder charges, and prosecutors will pursue terrorism and other criminal charges. In order for prosecutors to use the public safety exception, prosecutors must prove that Dzhokar poses an imminent public safety threat. And you can't exercise the public safety exception without declaring him an enemy combatant. To declare him as an enemy combatant, this case will have to set precedence because Dzhokar doesn't meet the traditional definition or criteria as an enemy combatant. Therefore, we won't be able to follow previous court cases because this case bares no resemblance to others; it carries it own unique set of circumstances and facts.
To bring a case under the enemy combatant declaration, prosecutors will additionally have to prove that Dzhokar continues to pose a public threat. I suspect this assertion is supported by the ACLU.
Notwithstanding, I would like to see investigators collect all pertinent intelligence data, and be allowed sufficient time to do so. But to all fairness to Dzhokar; as an American citizen, we must protect his "due process" rights. To do otherwise could compromise the outcome of any possible conviction/s.
Titles like this are what lures Americans into slowly losing their rights, which is on a downfall currently.
Really? The guy obviously did it. Are we really going to debate whether or not he did/should get the miranda read to him and chance release him on a technicality! Somebody kick the ACLU out of the room
It's time to scuttle the Miranda experiment. Criminals can recite the Miranda warnings in their sleep. It should no longer be a get-out-of-jail-free card.
Another right flushed.
A lot of cheap talks from our GOP friends.
Lets do the same to serial killers, kids killing kids at school or at the malls too. How about making sure cops also go straight to jail after shooting maiming and killing innocent folks. YEAP send all of those folks to a military court too. And Bush and Cheney to the Hague for their War Crimes, invading and attacking a nation and killing over 100K of innocent Iraqi babies, women and men.
Either way, he's in the Dumpster !!!
in 20 years from now, NK will be the bastion of freedom and fairness and the US a low land of criminals, corruption and fascims
So what makes a criminal a terrorist instead?
Our Goverment has circumvented our rights here. The fore-fathers are digging out of their graves... Follow current law.. we do not want to morph into a state of No Rights....Stop the slide.....
This guy murdered innocent people. BUT, he is an American Citizen. If we do not handled this case by the book. Then we are no better than the Terrorists. The justice system will prove beyond a doubt what happened. If it doesn't then we need to pitch the Constitution and start over.
How quick we are to eschew the hard won rights of our great country due to passion. This kid is a citizen, what does it say about us if throw out the bill of rights out of emotion. Justice will be done, why should we be so scared to let due process play out...especially considering the justification for no miranda was overwhelming evidence of guilt!
That will be one H*LL of a debate. Because I'm not sure how someone could handle this situation.
What are republicans afraid of, our justice system? Read him his rights, charge him with murder, terrorism, etc. He is an American citizen. These same senators were aghast that we killed an American terrorist with a drone in Yemen. Don't they see their contradictions? Don't worry, he'll be glad to talk to us if he values his life at all. What do these guys want, waterboarding? Our democratic system has rights which can't be changed based on situations.
What's wrong with our Republican lawmakers? Do they want us to know they are tough or bunch of fascist/
It is amazing that anyone truly think this poor example of a human being deserves the protection of our legal system. Would these same people advocate American criminal trials for the Japanese while they were bombing Pearl Harbor? This was an act of war. Not a crime. They wanted to be soldiers. We need to treat them as such. Wake up and understand we are at war. Go on. Admit it. .
He is a terrorist. No there should be no Miranda. He is an enemy combatant, and we need to extract information in order to trace his actions back to their roots.
These two are only the tip of the iceberg. They have connections to a much larger group that needs to be identified.
they are combatants for a non national, non traditional enemy force.
Has no one made the connection that Obama and Putin discussed Obama's "Flexibility" of power after election and now we have a Russian extremeist group setting off bombs at a very public ordeal in the US?
another example of the extremist right itching for the chance to suck away more constitutional rights from those they dislike.
With all due respect to the honorable senators McCain and Graham, their view of jurisprudence in the case at hand is lacking. How is this case different from that of Timothy McVeigh, who was not handled as an enemy combatant but as an American citizen. The alleged bomber is an American citizen. We have no information, yet, that he is working for any foreign power.
There is a risk in pushing too far the concept of withholding legal rights from the accused, namely that the government's case will be damaged due to lack of proper procedure.
Law governs this country, not two senators' opinions, fortunately for the rule of law and our Constitution.
Senator McCain has obviously forgotten his oath to support the Constitution, along with Senator Graham. They should revisit their oaths and consult with higher legal authority before showing their ignorance of the laws in question.
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.”
This is a 19 yr old kid who has abolutely no evidence against him that he did anything- he is a patsy for the government and “They’re creating crimes to solve crimes so they can claim a victory in the war on terror,” , a lawyer who represented a suspect involved in a New York City bombing plot contrived by FBI agents.
This was a drill – a live drill during the marathon in which they told people NOT to move or be upset due to the events occurring and that it was just a drill. They pinned it all on two kids from russia because they knew the american public would fall for it- and they did.
This COWARD wasn't just a guy stealing from a store with a weapon. He waged war on American citizens. What is the debate about? This was an act of war. The older brother had bombs strapped around him when he died. Look at the Oklahoma bomber. What makes these two different? They should have shot him dead instead we are using tax payers money on this dummy just like the guy who killed some of our military in Texas. People like this don't deserve to take another breath.
They are using the Patriot act to screw this kid to the wall.
War is a state between sovereign nations. Two brothers do not constitute a sovereign nation. Therefore, their actions must be regarded as criminal. As criminals, they are afforded Constitutional protection. That protection ensures American citizens of not having to be subjected to law enforcement agencies employing Gestapo-like tactics in America. There should be no exception.