(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
really no reading of miranda rights? does the government have the authority to pick and choose? apparently it does. i am disgusted with these senators that are flapping their gums. he might be guilty as hell but we have a justice system which includes miranda vs arizona. to not give that miranda warning is criminal. i am beside myself.
If there isn't any imminent danger to save other lives from immediate attack, than read the kid his rights and do things by the book. It's stupid to needlessly skirt the law. The world is watching.
Why does CNN say the older brother terrorist was in the country "legally" but won't say that people are in the country "illegally" when they lack proper authorization and documents to be here? Me smells hypocrisy.
He is not an enemy combatant. He is not a POW. He is a U.S. citizen. Read him his rights and do this the correct, legal way.
The Military trials of "enemy combattants" has been far less effective than trials done in civil courts of holding people accountable. At least the Civil courts get to cases faster.. until the sequester stuff that exists because some people do not want to pay for the services we need from the government.
The second you set off a bomb/explosive device you are a "terrorist" and as such are an enemy combatant. You no longer have the same rights as the normal citizen. Nuff said.
This is ludicrous. If he is a US citizen, then he has all the rights of a US citizen. The crimes he committed, while terrible, are addressed in the constitution. He has a right to a trial, and a jury.
DT is a pissant and should have his newly acquired US citizenship revoked and sent to Guantanamo as an enemy combatant, exempt from the rules of the Geneva Convention.
And so, the political circus begins...
As a side note, he may not be in a position to even understand the rights he is being told so what would be the point. Wait for him to be fully awake and of "sound" mind then IF we choose give him the speech so down the road there will be no issue. They loser is injured and bleeding. He's not talking I'm sure...
So, I don't think it's a big deal that they didn't cite the Miranda Warnings- he was probably too out of it to process them anyway. But the idea of him not even having access to an attorney during trials??? That's going too far.
He is an American citizen.
He is 19 years old.
He has never caused even the slightest bit of trouble before this.
Something is a little bit odd about this. He deserves some kind of representation. For all we know he may have been threatened by his brother to do this. I mean, for heavens sake, everyone forgave Patty Hearst because she was "brainwashed"- she was the same age. How do we know this is not exactly the same thing?
So freaking predictable. I was waiting for this nonsense to happen. These are the same republicans who were so up in arms with the government using drones to kill an american citizen outside of the country because he engaged in terrorist activities against us. Now they want to strip this NATURALIZED AMERICAN CITIZEN, a fact that they are conveniently ignoring, of his constitutional rights. You can not have it both ways, sorry, you just can't.
Ok, let us also charge the BP execs who blew up and fried alive 12 workers with being 'enemy combatants.' [When you knowingly leave off important safety equipment it's no accident when the rig blow up.] BTW: as combatants he would be placed in POW status, with no death penalty. Is that what you want?
let us allow the parents of this young man to have closure and provide the proof of evidence against him, before he his put to death. let us find the forces that cultivated and perhaps pressured him to perform such terrible acts of violence at such a young age. could it be that decades of american aggression abroad have shaped a globally disapproving opinion of america with each new generation? those who grow up under violent american interventions probably have right to be pissed off. can we start changing course, yet? have we learned anything, yet? probably not and thats whats truly sad. EVERYDAY OUR MEDDLING IS CREATING NEW TERRORISTS AROUND THE WORLD. i find it hard to blame all of them sometimes, just sayin.
Don't mess this up by mis-charging him and end up letting him get extradited or traded to al-Qaeda. Try him like any other multiple-murderer and leave religion and politics out of it. Then hang him from a sourapple tree.
I'm embarrassed for McCain. He was a prisoner of war and supposedly an opponent of torture. I had a lot of respect for him.
Why is this still headline news? It was almost a week ago and the "gripping" part is now over – the suspect has been caught. CNN should move this to the side of the front page and post regular updates but there's no need for the continued HEADLINE BLASTING UPDATES. Move on already.
This is the problem with America. They have no qualms against flying drones into foreign countries and bombing people but should someone do the same to them, tey take away all that person's rights and hold them indefinitely without legal representation or rights. America gets what it deserves.
Nice. The guy is a citizen. Take away his 5th, 6th, 8th rightw? No. What are these politicians so worried about? They don't want this guy to have an attorney?
And they just got done talking about protection of Constitutional rights last week – i.e. the 2nd Amendment. So weird. I am shocked they are suggesting it. This is a citizen. Just give the guy a fair trial and justice will be served.
Nothing to debate. He stands accused of numerous crimes. There's a process - "due process" - for dealing with this and more than enough resources to make sure that this gets carried through.
As for the Senator.....what can I say? After last week's debacle there's no credibility there, they're just full of blather, a worthless bunch of self-serving hypocrites.
This guy is a citizen. And these politicians are suggesting that a citizen's 4th, 5th, 6th, and 8th can be violated on a whim of Congress? Just give this guy a fair trial, appoint an attorney and go through the process and justice will be served. We do not live in some 3rd world country where the military runs the courts.
GOP, get off this torture, Guantanamo, violate Geneva Convention stuff.
This kid is a US Citizen. What he did was not much different than Timothy McVeigh and we managed to try him in civilian courts with no problem and without violating the rights of a US Citizen.
Why not just try him in a civilian court and charge him with 27,000 counts of attempted murder along with the murder charges?
He is a citizen. PERIOD! Any attempt to treat him otherwise is an affront.
We do understand that Miranda warnings are only required before questions are asked, right? Just because someone is arrested does not mean they are immediately Mirandized.