April 20th, 2013
05:38 PM ET
12 months ago

Should Boston bombing suspect get a Miranda warning? Debate follows Friday capture

(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

soundoff (276 Responses)
  1. Name Uche Agonsi

    THE REPUBLICANS !! They seem emotion-driven & full of contradictions. Are these people not the same Repubs that recently desired to crucify President Obama with their outcry against using US drones on people they called US Citizens in America. The same Repubs vehemently raised grim opposition against comprehensive gun control law, stopping it from going through the Congress, even when they know the law was designed for crime fighting. I think it would be more helpful to subject the Tsarnaev to a trial he would exhaust his thoughts & belief against State laws......& watch how far he was from the truth. It might be lesson to others.

    April 20, 2013 11:30 pm at 11:30 pm |
  2. thelastindependent

    “My God, they were at war with us, we need to be at war within our values and within our laws.” And that's is why we should undercut those same values and laws US citizens have. I love how Graham worked that logic out.

    April 20, 2013 11:32 pm at 11:32 pm |
  3. Ortho Stice

    Two words: American citizen. The day we start making distinctions and parsing subtle gradations with those two words, this nation has jumped the shark.

    April 20, 2013 11:35 pm at 11:35 pm |
  4. DocHollywood

    If I remember right, some of these guys were the same ones yelling about using drones to kill American citizens overseas who had joined extremist groups. Here's an American citizen in this country, and now they want him tried under the military? Are these guys afraid of our constitution and how it works? Get real, Graham. Quit yapping for yapping's sake.

    April 20, 2013 11:41 pm at 11:41 pm |
  5. Nothing At All

    Whether anyone likes it or not, he is an American citizen and the alleged crimes were committed on US soil. Article Three court is where he should be tried.

    April 20, 2013 11:43 pm at 11:43 pm |
  6. Robert

    Good article. If Obama declares him an enemy combatant and send him off to Cuba for military interrogation and court proceeding, then there goes the whole ballgame. Those GOP Neocon hawks don't care about the constitution, they just want to set precedent for future eviscerations of the constitution. If Obama does it, then we'll know that the accusations that he's Bush Jr. 2.0 are all true.

    April 20, 2013 11:43 pm at 11:43 pm |
  7. Theresa

    Read the guy the Miranda speech. It'll take about a minute. Arguing about whether or not an officer should read it to him would take days, if not weeks. Really, people.

    April 20, 2013 11:44 pm at 11:44 pm |
  8. shane

    He must be treated as a citizen so that the freedom we proclaim can be demonstrated.

    April 20, 2013 11:44 pm at 11:44 pm |
  9. Shawn Maness

    At the end of the day we are at war, both with the Terrorist and against each other. Our values and our beliefs are in a state of flux, and some amongst us wish to keep the anger against each other flowing. Democrats need to realize we are at war with an enemy that wants them dead, and doesn't desire to negotiate. Republicans need to understand that even though its obvious to them we are at war we have not made a good enough case to the younger population. Education in our country is controlled by the Democrats, period end of story. They cannot make the case for Republicans as they do not understand the problems at hand or at least not the Republican vision of them. In times gone past Kids understood the dangers facing us as we were instructed about current events in classrooms and even went so far as to have to bomb drills. To put it bluntly Democrats hate republicans with the same fire and anger as the Jihadist. If a Republican is for it, odds are the Democratic party will attack it. Republicans can't change this all we can do is try to explain our point of view and hope at some point the so called party of peace actually shows some restraint from there hatred long enough to listen. This guy is an Enemy combatant, inducted by his brother, here to kill Americans. IF allowed to same due process as your average American teen out for a joy ride we will be sending a message that others will here and they will duplicate what he has done. We have enough of our own issues lets not invite more.

    April 20, 2013 11:46 pm at 11:46 pm |
  10. Doug Carter

    This is a slippery slope to run on. The constitutional protections in the USA apply to all people in the USA regardless of citizenship or nationaity. This terrorist was traced and captured on American soil by American civil authoritiesn not in some war torn country filled with opposing armies. If we abrogate the constitution here, no matter how convienent, where will it go next. Will PETA "terrorists" be next for throwing blood on fur wearing citizens (biological warfare)? Will Republicans be willing to throw anti-abortion protestors to the wolves for thier murders and bombings at abotion clinics (mostly religious warfare). We do not need to set aside the constitution for convienence, we must work within its boundaries.

    April 20, 2013 11:51 pm at 11:51 pm |
  11. Jupman

    Ah bypass The Constitution so we get no answers.

    Pleas folks ignore this for a while and check out CISPA the bill is about to pass the Senat all of this is a distraction to keep the momentum throughout next week.

    April 20, 2013 11:55 pm at 11:55 pm |
  12. Curtis

    We are first and foremost a country of laws, and departing from that notion, as we have done in Guantanimo, has placed a stain on the country that will long remain. We have suffered attacks on our integrity as a nation and our ability to lead our citizens in a manner consistent with the Constitution. The accused in this case was granted full citizenship on September 11th of last year. Not partial citizenship, not limited citizenship, not temporary citizenship, nothing less than full citizenship. Our citizens have died under the banner of a great nation that is not to be further sullied by men who cloak themselves in some patriotic fervor of the moment to suggest that we turn that Constitution aside because it stokes their emotions to do so.

    April 20, 2013 11:55 pm at 11:55 pm |
  13. Deaw

    My god, the congress are getting weirder every given day. He's a 19 year old kid who did a really terrible thing no doubt ,but really?! to treat him as a enemy combatant. Must we bring military into every aspect of our lives, the congress shouldn't even poke their nose into this mess. They should just shut up and focus more on law making and get us out of this recession.

    April 20, 2013 11:59 pm at 11:59 pm |
  14. Craig Doherty

    Without any real evidence that this was an attack sponsored or coordinated by someone outside of Boston this is an unfortunate incident but still falls under the realm and jurisdiction of the local police. I have not heard anything yet to suggest that their planning or coordination had anything to do with foreign or state-sponsored terrorism, never mind even having had any interstate component. Just because the FBI, ATF, DHS and everyone else jumped into the manhunt under the assumption that this may have been an attack against the US coordinated by foreign powers or forces, does not provide legal justification to change the jurisdiction to that level when even after the death and capture of the two suspects we have not seen anything to indicate that this was anything other than two sad and desperate young men who for one reason or another murdered 4 people and injured many others, no different than if two Irish-American brothers frustrated with their own state of life had done the same by driving a truck into a crowd or opening fire with semi-automatic weapons. They are still heinous crimes but at this juncture, this is a crime that is in the Boston jurisdiction until and unless some other connections are discovered.

    April 21, 2013 12:00 am at 12:00 am |
  15. American Thinker

    I wonder how long before any American that speaks out against our government will be deemed an "Enemy Combatant" and have his rights stripped and thrown in jail indefinitely without trial. I can see it now. That is what they do in countries like Saudi Arabia. These Terrorists didn't want to just kill Americans, they wanted to take away our freedoms, to create a police state. Looks like they are winning.

    April 21, 2013 12:00 am at 12:00 am |
  16. Susan

    Military doesn't need to handle this kid. They can't even shave the one they've got. What's so hard about locking the wheels on his chair and be done with it?

    April 21, 2013 12:02 am at 12:02 am |
  17. norma jean

    Considering the fact that you Republicans refuse to take part in running this country along with the duly elected president...what has you so stirred up regarding this murderer that you are taking a stand about how he should be treated?The brother is dead and this one might not make it but all of a sudden the Republicans are showing an interest in what is happening in our United States.....What is going on??????Grandstanding??.....A little late boys!!

    April 21, 2013 12:02 am at 12:02 am |
  18. Guest

    "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.”

    WOW. Seriously? We always focus on the terrorist or instantly the country they came from, but he became an American citizen and had access to the materials and weapons. Where is the focus on this? We are so quick to blame identity and never the institutions and other factors. Yes, what he did was wrong, but Using it to further islamophobia in the US is ridiculous.

    April 21, 2013 12:04 am at 12:04 am |
  19. Bart

    Congress should start hearings on each these politicians to determine whether they have commited treason or violated their oaths of office. Regardless of his motives, this murderer is a United States citizen commiting crimes within the United States, he has protections under the Constitution. These politicians claiming we should forgo the Constituion and gather information from (torture) this individual is treason, it agains against the principles this country was founded upon. Do this and you open the door for any crime to be called terrorism and any American to be locked up indefinitely with no rights.

    April 21, 2013 12:06 am at 12:06 am |
  20. Engineer

    Republicans – "Nothing is more important than the Rights provided by our Constitution, UNLESS we decide we don't like the person exercising those rights."

    April 21, 2013 12:11 am at 12:11 am |
  21. SamB19

    I am embarrassed to even acknowledge some of the R-Sens' ridiculous position –
    No wonder this country has problems.

    April 21, 2013 12:11 am at 12:11 am |
  22. Eric

    I think that is a bad idea. It was a crime and a heinous one at that but to start changing how legal system works and what rights we have available to us just based on how sensational something is made by the media or public at large is far more dangerous than terrorism.

    April 21, 2013 12:11 am at 12:11 am |
  23. Stephen Johnson

    The conviction rate for military trials is much lower than in civilian courts for terrorists. Why let the military do it when civilian courts do it better.

    April 21, 2013 12:15 am at 12:15 am |
  24. Sfakia

    I do not see it necessary nor constitutional to treat this man as an enemy combatant. Massacres with guns are no different than those with bombs. Also the intent is not as important as the actual crimes themselves. It is illegal to murder people, as it is also illegal to use bombs in any manner. How else can we expect an American Citizen to be protected if falsely accused if not allowed to receive a trial by jury of his/her peers. Once we erode Miranda rights and allow the military to conduct trials, then we lose our sense of justice in my opinion. Remember we must be thought of as innocent until proven guilty. I for one don't trust military tribunals over civilian courts.

    April 21, 2013 12:22 am at 12:22 am |
  25. Spiff

    Should a US Citizen, who is innocent until proven guilty in a court of law, be denied his constitutionally guaranteed rights? Absolutely not and it is terrifying that Lindsay Graham would advocate for that, especially after our little government demonstration of what it would be like to live under martial law in Boston on Friday.

    This isn't even a partisan thing. The current administration's record on civil rights is disgusting as well. How many rights are citizens willing to let the government openly trample on before something is done about it?

    April 21, 2013 12:22 am at 12:22 am |
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