(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
Very informative piece. A lot of people have misconceptions about the terms and use of "enemy combatant", "miranda", and "Public Safety Exception" I think this does an ample job of describing all and from officials that matter.
bull. he's an american citizen who committed a crime against innocent victims who happened to be watching a traditional open sporting event on US soil. there is no evidence he has no military or terrorist group affiliation. he did not attck the government, the military. he was not attacking or abetting a foreign group to attack americans on foreign soils and there is no evidence to date that he was acting at the behest of or on behalf of or in affiliation with a foreign group or government.
you can't declare a person an enemy combatant when he is neither affiliated with a foreign or enemy group nor fighting in a military theater. meeting this requirement means tangible evidence, not hunches or belief based upon unconnected dots or circumstances which might indicate it's possible-- any more than the fact that someone belongs to a particular racial or ethnic group.
unfortunately, that seems to be what it seems the belongs to a group that people currently are inclined to jump to conclusions about seems to be what this senatorial comment is about.
i imagine this problem would not apply to suspects who unexpectedly "expire" in custody
If he is to be tried in civilian court yes its his rights. The kid should be granted the same due process as any other suspected criminal would receive. (Liberty and Justice For All, Not Some) If he is deemed a terrorist and tried under military tribunals then he should be afforded the same as allowed under Military Justice.
Love it how CNN first attributes denying the "suspect" his constitutionally protected rights to Republicans and then to people that actually have say.
Carl Levin (D): "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."
So, Mr. Dim, let's NOT interrogate him just to make sure he DOESN'T provide that missing evidence, ok? How does anyone vote for a democrat these days? People like Levin don't think, and are aways on the side of the criminal, it seems. All the victims can be assured that Dims will (a) provide insincere statements of support to them, while (b) providing actual and direct support to the criminals.
We've lost our moral compass and our way of life ...
I agree with those saying he should be read his rights and have access to an attorney. C'mon, this is America for God sakes. All I know is what I've seen on here and other media outlets. Where is the absolute proof this guy was n loved. Even if it is him and his brother, at least let it play out in the courts. He deserves punishment if in fact he was knowingly working with his brother. But sheesh. Lets do it the right way.
no, sending one more person to Gitmo just makes US more of a terrorist state.
I agree with those saying he should be read his rights and have access to an attorney. C'mon, this is America for God sakes. All I know is what I've seen on here and other media outlets. Where is the absolute proof this guy was n loved. Even if it is him and his brother, at least let it play out in the courts. He deserves punishment if in fact he was knowingly working with his brother. But sheesh. Lets do it the right way. I am positive I am not the only one that sees the danger in prosecution before a trial! Cause that's what this is.
At this point he has not been questioned. Miranda precedes questioning. No questions, no charges. Before questioning starts, Miranda will be enforced and the case will move forward with all the facts attached. He was a public threat and fired at law enforcement from the start with abundant witnesses.
He was caught by the cops. He should be trialled by the jury of his peers. That's American justice.
Ugh, iPhone. That should say "involved" not n loved.
If I am not mistaken these guys used "Weapons of Mass Destruction" to try and kill as many people as they could by using pressurized cookers loaded with ball bearing and nails to try and take out as many people as they could. This type of explosives are used by terrorist groups throughout countries that deal with terrorist constantly. The problem is that we rarely deal with issues like this in the United States and if they do have ties to any type of terrorist cell they should be considered to be "enemies" of the United States and should be considered an enemy combatant! I say we charge him and hold him in our toughest prison that we have here in the United States to teach him a lesson. Even though this coward is a teenager he needs to be treated as an adult and more importantly like an enemy combatant of the United States!
The moment you pledge allegiance to terrorism instead of your nation, you forfeit all your constitutional rights immediately.
Yes, he should get the Miranda warning and no, he should not be tried as an enemy combatant. Mr. Tsarnaev is a United States citizen and the crimes he is accused of committing were committed on US soil. No matter what you (or I,for that matter) might think of him, he is just as entitled to the protections guaranteed by the US Constitution as you and I are. Besides, if we treat him as an enemy combatant and deny him the full range of rights demanded by our Constitution, we will have proven many "terrorists'"point by demonstrating that our guarantees are meaningless and our system is corrupt. We are better than that. Try him in federal and state courts. Our laws are more than enough to deal with him. We have everything to gain and nothing to lose by extending equal protection before the law to ALL people, not just those we like.
You know where to go Carl. Guantanamo and waterboarding is the correct path here.
to hell wit that
just because he wants to do his evil thing doesn't mean we should back down from our principles not a single inch.
He should get an absolutely fair trial in front of the whole world.
that's right McCain lets act like a third world country and deny our citizens their rights, is McCain even truly American?
Not understanding americans they r confusing no morales they were trying to tell us something did anyone take this cry for help seriously felt very alone no one realized how important it was to take the time to answer their questions people just blew them off which when u r sincere makes u feel like noone cares thats why it spireled out of control they were hurting so bad inside it wasnt in their personality but cuz there was no one who could help them with their cofusion all kinds of people r out there ready to give them the answer use them in their vunerbility their family was right they were set up they began to listen to the wrong teachers in their confusion watching our political leaders money n wining is more important than saving our country they didnt get to see the people who care about people police fireman medical teachers people who work at gas stations grocery stores they put their life on the line every day the military our children who risk their life to go to school they r our heros we r looking 4 people who care about others not about money being rich doesnt impress me being popular doesnt impress me
does anyone understand me
regardless of what he has supposedly done, he is still a citizen and should be marandized as others accused of crimes are. if you make one exception to the law where will it end? at your door one day.
Try this in Massachusetts courts. Keep it public .
When these so called US citizens were sworn in, the pledged the following: I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion SO HELP HIM GOD! Look, there should be a swift amendment to this to include punishment for violation of the pledge and all rights of a US citizen relinquished.
Does it matter? AFAIK, the police technically don't need to read him his Miranda rights, even without any "exceptions", Just that if they don't then any statements he makes is inadmissable in court. (though, apparently, any evidence gained from his statements can be. Such as a bomb he says the location of.)
I seem to doubt they'll need a confession to obtain a guilty verdict, so it seems unlikely it matters whether or not they give him a Miranda warning.
Categorizing him as an enemy combatant is wrong and unethical on part of anyone suggesting the same for political or cultural gains. The suspect in custody is a US Citizen and should be tried as a citizen of this country. He is a criminal who has committed the felony of multiple murders. These guys who are put to death have an easy way out after conviction. The prosecution must seek life in prison with hard work and no parole at all. These are our core cultural human values at stake here!!!