(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
Right here, public safety overrides any laws. When did this start and is this what will be used to take away freedom? Google defintion of freedom also Liberty. You will see neither exist anymore.
Republicans have a history of saying that ANY foreign born who does a mass murder should be tried under military law. I'm sorry, but in this case, it just doesn't apply.
He is an enemy combatant representing a foreign enemy we are actively engaged in combat with. Further evidence will undoubtedly show they received instructions from this enemy and they were motivated to further the cause of this enemy. Addtionally they violated the geneva convention's rules of combat and are technically unlawful combatants which strips them of virtually any rights.
The GOP always thinks about war. We are not at war with these two kids. They are murderers plain and simple and decided to kill their fellowmen in the most horrible manner possible. They were not waging war nor did they declare war. Civil courts will be good enough and with the evidence effecivein giving him the death penalty and getting a lot of questions answered in the public arena. The GOP must stop thinking like Kim Jong Un. The military is not paramount over the civilian arena.
Lindsey Graham, Are you saying you are at war with American citizens? Who are you at war with? He is an American citizen.
Rabble, Rabble, Rabble. The GOP in DC just has to get in the way don't they. Shut up! We are sick of you.
Why do we need to sweep this under the rug... hide details under Military trials? Our system of justice WORKS. He will be severly punished. This looks suspicious. Try him in open court. It's not like he has any chance of avoiding his fate.
Greed Over Patriotism in un-American
Yes- this Terrorist scum is certainly an enemy combatant! He and his sick brother declared war upon the people of the United States (this ain't 1941 where official certificates are drawn up and votes taken). Non-state actors seeking WMDs to kill, maim and terrorize the innocent civilians of our nation- they don't wear uniforms, they don't obey the Geneva Convention and Law of War like our Service Members. Posters here are out of touch and living in the past and won't be satisfied they are wrong until a mushroom cloud appears above one of our cities !
This guy needs to be interrogated with all the necessary equipment and techniques at hand. When we have gathered all the data needed to help protect our citizens, ship him off to GITMO and let him ROT for the rest of his pitiful life.
You can't treat a Terrorist like a SHOP LIFTER or home burgler.... this is War they made on us.
Just try him in a court of law as a murderer Why do so many law makers seem to lack faith in the U.S. Justice System?.
Is this how fascism starts? There is no doubt he'll be convicted in any court, but he still should receive a trial. Otherwise who's next?
i think if you dont give him his miranda rights what dose the usa stand for is there no more trail any more? by this are they saying they have the power to do what they want? dose this mean 96% of are grovment should go to jail with no miranda rights are they trying to cover something up by not giveing him his lawer? what going on ?
Taking away a citizens rights for any reason is a very dangerous road to travel as it ultimately leads to facism. The courts actually have an excellent record of convicting terrorists. Because he is an American citizen, and has no affiliation with any terror group, it would be unconstituional to try him in a military court. I can tell you this, if people in their emotional states, which I understand, allow or encourage this, they will be very sorry in the long run. We have already lost many of our rights because of 9/11. We don't need to lose more.
I can't believe there is even an issue about whether or not this terrorist was a threat to public safety!! Let's look at the facts- almost 180 INNOCENT people were injured, 3 people were killed at the sight of the bombings and a police officer was gunned down on a school campus. Then the fire fight along with explosives were used in a residential neighborhood!!!!!!!!! How much more evidence that he was a threat to public safety do you need?????? Not to mention, in my opinion, we have distorted the initial basis of our legal system. It was set up to protect innocent people falsely accused- NOT to find loopholes to get guilty people off. If these guys were in fact innocent or 'framed', then why did they shoot at police and throw grenades at them????? WHEN is this country going to go back to protecting the innocent???? If we take it easy on this guy, then it will just open the door for other terrorists to come and commit atrocities against innocent US citizens since the only punishment they will get is free room and board for the rest of their lives!! That's what our jails are>:(
How much do you want to bet that this kid can recite the Miranda rights from memory. He grew up in the US. He probably learned about it in social studies class or saw it recited in countless movies and TV shows. Moreover, his throat is banged up, so he can't readily talk and say something to incriminate himself.
"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."
And, down the slippery slope we slide to totalitarianism. What does it hurt us to provide our enemies with our Constitutional protections? Does it not serve as an example to the rest of the world that our values are more than just words?
Timothy McVeigh and Terry Nichols were not tried as enemy combatants, and the justice system worked. It will here too.
Read him the rights and treat him as any criminal. If the laws of the united states are insufficient to deal with his crime. Then clearly these laws are not well written.
He's technically a citizen and committed a crime on US soil. He should be tried as such. Do we not think our justice system can serve the victims justice?
I consider myself a conservative. I vote Republican straight ticket when I vote. That being said I find it disturbing that Senators, Republican or otherwise are look for ways to deny this person his rights. I want him fairly tried, fairly convicted of federal terrorism charges and fairly put to death. All of this back door conniving serves only undermine our constitution and potentially taint any future conviction. Like it or not he is an American citizen on American soil. Our rights are what makes us American. When we start looking for ways around those rights because of the terrible crime he committed then he did far greater damage to our country than ten thousand of his pressure cooker bombs could have.
He's a criminal. He commiitted a crime in Massachusetts and should be read his rights like all other criminals and tried for his crime in Massachusetts. He also violated other laws, federal, so maybe the feds have at him as well.
I'm not always in agreement with the ACLU, but this time I am. Read him his rights.
Of course he should he is an American Citizen.
Wow. The same Republicans that claim any gun law is a threat to the 2nd Amendment and will inevitably lead to outlawing and confiscating of all guns and ultimately a totalitarian government have no problem whatsoever setting aside any other legal or Constitutional rights. The pinnacle of hypocrisy.
Wow, is this the beginning of the end for our civil liberties? Terrorism is winning.