(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
The guy is an American citizen that was captured on American soil. There should be enough evidence to convict him as is, if he is denied any Constitutional protection then any American citizen can be by government merely accusing him.
Tsarnaev is a US citizen for a crime committed on US soil,and is not a foreign national.If he is an enemy combatant, what country is attacking the US? Was Timothy McVeigh treated as an enemy combatant? Tsarnaev should be tried by the civil courts with all legal protections our citizens have, otherwise we are making a mockery of our Bill of Rights.
Lindsey Graham is the most Un-American Senator in the Senate. He should be investigated for terrorism! He is wrong on EVERY issue. He is one of the child killer NRA supporters too!! The Senators who voted against the New Gun Bill last week did more to America and Americans than any terrorist ever did!!!
Graham and McCain need to be put out to pasture.
And how long will it be before the enemies of whatever "war on x" are treated as enemy combatants? If we allow this logic to prevail, the toll of this bombing will be greater than the lives of our family, friends, or countrymen. It will be the freedom of all of us.
As much as it pains me to say it.......he is an American citizen, and that gives him rights. Among them is the right to a trial. If he was fighting with a group overseas and captured there.....revoke his citizenship and send him to a military court as an enemy combatant. But, on US soil? Court system without a doubt.
He is an american citizen and therefore should be put in trial as a traitor.
He is a US citizen and should be afforded all the liberties extended to him by the Constitution. It will be up to a jury to determine if he is a Dylan Klebold, Ted Kaczynski, Tim McVeigh or Mohamed Atta.
And now we answer the question:
Shall U.S. citizens be subject to military law on a congressional whim?
I feel as though treating Tsnarnaev as an enemy combatant would be a call not for GOP lawmakers, or Democrat lawmakers. Rather, it should be for the legal system to determine how to proceed with this particular case. Obviously, this is a situation in which there is (thankfully) very little legal precedent to go on, so why not err on the side of caution? There appears to be a solid enough case against him, why deny him any rights and risk creating legal loopholes?
Republicans love the Constitution up to the very moment it becomes mildly inconvenient. Right then, they are standing in line, yelling, about how the Constitution can be sacrificed for the mildest expediency. No, you can't declare Tsarnaev an enemy combatant. No, you can't abridge the right of self-incrimination. No, you can't abolish the right to counsel. No, fools, you can't.
ok. The movie theater shooter killed away more people. How come nobody wanted to hold him as enemy combatant?
Don't let politicians override the legal system; they'll abuse it even further for any cause they see fit to the detriment of the citizenry.
Try him as an enemy combatant . He wanted war, give it to him .
If they had 'actually' been members of the tea party and white you racist would be demanding he be quickly tried and stood up against the wall and shoot. I am getting so tired of the racist, bigotry coming from the left wing news media.
In this case I actually agree with the G.O.P. ...... this was all out warfare on the city of Boston. This should be handled as a military case, not a criminal one. These young men waved their natural rights by declaring warfare on the people of Boston. THEY gave up their rights. Their rights were not taken from them
It is a difficult choice. Any one who kills innocent people should loose his rights...and he should be dealt with swiftly and without any considerations. On the other hand, he is an American Citizen and has some rights. (Where he was born etc is not important) McVey was given a fair trial and dealt with swiftly. Why not him?
Either way I have no sympathy for him.
The guy is a U.S. citizen on U.S. soil. A pretty scary day when we start treating citizens as enemy combatants. Our criminal system can handle it. Its been handling cases of treason for 200 years without the need to declare them enemy combatants and try them in military courts. If he is an enemy combatant, why didn't we deploy the military in Boston to get him??
100% Agree, as long as we all think that David Koresh, Timothy McVeigh, the Unibomber and all other domestic terrorists fall into this category.
In my own personal opinion, they should read his Miranda rights, because he's a legal U.S. citizen (as far as I know); however, if he is not a U.S. citizen, he should be held under a military trial.
as an american citizen, he should be afforded the same rights as every other american, regardless of his crime.
i support GOP this time
Dzhokar Tsarnaev is a civilian and unless caught in military uniform of a real army he remains a civilian: Therefore he will be tried as a civilian unless the attorney general talk after the police action or no Miranda warning prevent him from getting a fair trial. I hope he gets one, everybody is watching.
I'm sorry for those who were hurt and the families of those who were killed during the bombing in Boston. That being said however, we should treat him as any other accused American. He should get the Miranda warning, he should be tried in criminal court, and he should answer for any crime he may have committed against his country. If during the investigative process it is found that he is part of any terrorist group we have declared war against by an act of Congress, then and only then should he be tried as a war criminal. This should be done AFTER it is proved that he has these ties. To do so before makes it to easy for other Americans to be classified as enemy combatants and therefore turns us into what we are fighting against. You cannot fight terrorist by their methods.
How about revoking his citizenship because he was not upfront and truthful. Citizenship is a privilege, not a right. Applicant promise to obey and uphold that country's laws, to which an oath or pledge of allegiance is sometimes added.