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. daver

    No. They are not enemy combatants, even if they were sympathizers. They took no direct orders, and are not in any reporting structure. They are international criminals, guilty of capital murder with terrorism enhancement. The survivng punk, is eligible for federal death penalty. Pump him for information to make sure they did not have any suppourt, aside from internet instruction manual, then try him. Sentence him to death. Let appeals run their course. Then sit back and watch the lethal injection take its course. Then give the body back to his family in Russia, with bill for incarceration/execution.

    April 21, 2013 01:54 am at 1:54 am |
  2. hjc

    US citizen, US soil. Try him as a US citizen.

    April 21, 2013 01:54 am at 1:54 am |
  3. AGrey

    As an American citizen who was arrested on American soil, he should not be designated as an "enemy combatant". The intention of creating the concept of "enemy combatant" was to take action against individuals outside of the jurisdiction of this country, when those individuals posed a threat but were not defined by the Geneva Convention. Designating this man as such would seriously erode the fundamental rights that make this country so great. Our civilian justice system has always worked fine for prosecuting terrorists. It took care of Timothy McVeigh just fine.

    April 21, 2013 02:00 am at 2:00 am |
  4. Jackie

    Senator Graham needs to take a refresher course in Law 101 and remember he was paid to vote no on the gun bill. every lawyer and Journalist that bothered to read knows in 1984 the US Supreme Court allowed Public Safety Exemption in Mianda Rights. This case fits the statue where the need for the safey is needed to save Americans. We didn't know if their were move people or bombs which only the accused could give. Republican Lawmakers called for Torture of the accused in hopes they could Impeach Obama for violation of the law.. Everyone knows Bush lied and tortured women/children and has been indicted in numerous countries for War Crimes.

    April 21, 2013 02:01 am at 2:01 am |
  5. Hogarth

    What the bombers did was heinous, but is every murderer now to be tried as an enemy combatant – or will it be merely at the whim of a few crackpot senators?

    April 21, 2013 02:03 am at 2:03 am |
  6. Jerry Scott

    well better ban pressure cookers now they are highly explosive because they kill and dismember people so i think they need to be pulled off the shelf and as for Obama's immigration agenda pfft he needs to relook at that and leave the gun issue alone

    April 21, 2013 02:06 am at 2:06 am |
  7. Paco

    Drones in foreign countries, no rights for suspects, no lawyer, no right to remain silent and then the USA wonders why people want to plant bombs in their country. Hypocrites.

    April 21, 2013 02:07 am at 2:07 am |
  8. Brian MacCartney

    Enemy Combatant? Why? Because they use a bomb or because they are foreigners? If we say it is not because they are foreigners but because they used a bomb then why not treat every person that uses a bomb as an enemy combatant. Guns can are used in warfare, why not declare all persons using a gun in a crime an enemy combatant. Simple. It might have been an act of war in their minds but in the eyes of the law what they did was a crime. And we prosecute crime in this country. War is an organized and often prolonged conflict that is carried out by states and/or non-state actors. It is characterized by extreme violence, social disruption, human suffering, and economic destruction. Criminals are non-state actors that perpetrate extreme violence, social disruption, human suffering, and economic destruction so why haven't we declared them enemy combatants? Think about it...and no I am not in favor of the idea.

    April 21, 2013 02:09 am at 2:09 am |
  9. Jenni Simonis

    Rights like Miranda and a lawyer are central to our legal system. I don't care how bad your crime was, you still should have a fair trial the same as everyone else.

    April 21, 2013 02:11 am at 2:11 am |
  10. biglio

    The guy is a US citizen so should be treated as such, if we start making exceptions we are going on a very slippery slope.
    Regardless of what he did he needs to be under US laws which means innocent till proved guilty.
    Period, no discussion. The fact Republicans even consider treating him differently should ring a bell in everyone's brain about how misguided their proposal is.

    April 21, 2013 02:14 am at 2:14 am |
  11. laguna_greg

    "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. "

    I'm afraid that's quite true.

    April 21, 2013 02:15 am at 2:15 am |
  12. Capone

    I don't understand it.

    Timothy McVeigh was read his Miranda rights. He was also prosecuted through the civilian justice system. So was Terry Nichols, Ted Kaczynski, Zacarias Moussaoui, Umar Abdulmutallab, and Richard Reid. Each one of these terrorists were convicted.

    What in the world are Republicans afraid of and why do they continue to believe that our justice system is inadequate?

    April 21, 2013 02:15 am at 2:15 am |
  13. JLS1950

    Typical Republicans: "The Constitution is only to protect people who are like me; and rules are only for other people!"

    April 21, 2013 02:36 am at 2:36 am |
  14. Tom

    This GOP response is just dumb. Would they say the same if it was a Christian anti-abortion guy that set off these bombs?

    These are twisted people that mis-use whatever religion they follow to justify their crazye beliefs. If it was a North-Korean spy, that can be considered an enemy-combatant. Losers like this should be treated as the common criminals they are, not elevated to some status of "soldier with the enemy"..

    April 21, 2013 02:45 am at 2:45 am |
  15. mountainlady

    From the very beginning this crime has been handled by the highest levels of the Justice Department and national and local law enforcement. I say everyone should back off and let them handle it. It's not like this is a single law enforcement entity making these decisions. The ACLU and the politicians should back off and let the professionals handle this.

    April 21, 2013 02:50 am at 2:50 am |
  16. Philip Williams

    These legislators – with calls for "military law" – plainly miss the glory days of waterboarding and other torture to squeeze something, anything, out of the detainee., whether it is useful or truthful or not.

    April 21, 2013 02:55 am at 2:55 am |
  17. rudolf vs

    If we allow the prosecutors to remove the Miranda warning from this case, then we are entering a slippery slope.
    We can then descend into a police state of the worst sort.

    April 21, 2013 02:56 am at 2:56 am |
  18. uckermanf

    Dear God these people need to shut up. "Enemy combatant?" "These people were at war with us?" What people? Chechens? 19-year olds? This is nothing more than an attempt by certain opportunistic GOP hacks to make it look like they are hardliners for political points. This crap needs to stop.

    April 21, 2013 03:01 am at 3:01 am |
  19. Rise2shine

    The cost to Americans has been amazingly overwhelming. I think we need to rethink our open arms to everyone seeking asylum. I am willing to bet the US even gave both of them student loans. I wonder if they used the money for weapons. We have to rethink giving America away. They have spit on all America. They have declared their own personal war.
    We need a Military Trial for ultimate treason, deceit and MASS murder.

    April 21, 2013 03:03 am at 3:03 am |
  20. Anonymous

    Scary comments coming from elected officials. You saw it here on CNN the past 5 days people, your police state at work. The military's hands do not belong on our civil justice system.

    April 21, 2013 03:16 am at 3:16 am |
  21. Damian Palmares

    This was a terrorist attack, he should be considered an enemy combatant of the United States. These terrorists work in this manner, they attack civilians and disrupt the lives of the citizens of a country in order to wage war. They do not have the resources to band together and fight a country head to head, so to speak. This is the only way they can wage war and if you do not think that what they did at the marathon in Boston was not an act of war and just a random...lets just go bomb the marathon. It's a no-brainer. Even if they were "brain-washed" or what have you...someone put them up to it and they did it. And it wasn't just a random act of violence. They should be tried as such.

    April 21, 2013 03:19 am at 3:19 am |
  22. Whatever

    “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.”

    No, sir we do not need to be at war with our values and within our laws. Your playing the "fear" card will not get Americans to cave into giving up our rights as Americans. Sure first you begin with this type of situation then the next thing we all know it spreads to another situation and another and another. It is a Pandora's Box that doesn't need to be opened. Americans don't want to live under a military state. We don't want our rights taken from us to keep us "safe."

    April 21, 2013 03:22 am at 3:22 am |
  23. The Veteran

    Why are we listening to these folks? GITMO has ruined our reputation as a nation of freedom and laws. Since when has the military been used to side step the law? Only under GOP leadership is it OK to lock people up indefinitely without a formal charge, or a trial, and it is OK to torture people.

    GITMO should have been closed. It was a mistake to begin with!!!

    GOP'ers who are bible thumpers, what part of Love your neighbors, even your enemies, and Love your neighbors AS YOURSELF applies here. Without a doubt, those who profess Jesus Christ know that there are no double standards. There are no separate laws for non U.S. citizens. Every soul on this earth is to be treated equally.

    Not to mention that this young man is a U.S. citizen!

    This nation is going to be third world within the next two decades if it does not pull its head out. The world is getting richer, and smarter, and we are getting poorer, and dumber. Thanks mostly to the GOP and Red State politics.

    April 21, 2013 03:33 am at 3:33 am |
  24. barbarianofgor

    You don't get it, do you?

    Tons of "Exceptions" passed in hate and haste in WW1, that nice little war to make arms dealers richer and set the stage for WW2 and onwards. Tons of people in jail for even protesting the war.

    And the ACLU got most of them out, including settlements against the government for it.

    IMO they should Miranda him, then say "Just shut up, get your lawyer, we'll talk later..."

    See he's clearly guilty as a cat in a goldfish bowl. The only thing that'll save him from being in solitary at a supermax for 10 years then executed is the government. What's worth making it life in prison or 20 years? If he can provide info that leads to the arrest/breaking up of the terrorist/network that trained his brother. What if there are more of these guys? This blunder taught them; "Avoid public cameras. If public cameras are unavoidable, make smaller bombs and work on your act better, and or your concealment of said bombs." If there are more out there, this will make the rest more careful.

    So, with his lawyer present in a deposition they should just say "Rot in solitary waiting death, or give us GOOD information, NOW..."

    It's worth saving his rotten life, even letting him out in 20 years IF he provides information that stops several dozen people like him. And I mean they find bombs, perhaps the head of a terrorist cell. They'd save more lives than he and his brother took then. But if it's just he and his brother and too much internet jihad, time for the chair.

    April 21, 2013 03:42 am at 3:42 am |
  25. jazz92

    He needs to tried as American Citizen in the USA!~ NO MILITARY! He is an American Citizen and committed the crimes here on American soil! He needs to be tried in Mass.

    April 21, 2013 03:42 am at 3:42 am |
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