April 21st, 2013
01:50 PM ET
2 years ago

Graham says 'enemy combatant' can be tried in civilian court

(CNN) - Dzhokhar Tsarnaev, the suspect in federal custody for the Boston Marathon bombing, should be considered an enemy combatant only for interrogation purposes, not so he can be tried in a military tribunal, Sen. Lindsey Graham said Sunday.

"He is not eligible for military commission trial," the Republican senator from South Carolina said on CNN's "State of the Union." Graham argued Tsarnaev should be tried in a civilian trial in federal courts.

Graham was among Republicans Saturday who called for the U.S. government to label Tsarnaev as an enemy combat so authorities could waive his legal rights while they question him for intelligence purposes.

"Most Americans want to find out what he knew, who he associated with, does he know about terrorist organizations within or without the country that are trying to hurt us? Does he know about a future attack?" Graham said on Sunday.

Graham said none of that information could be used against him in civilian court. Anytime Tsarnaev is questioned "about his guilt or innocence," then "he's entitled to his Miranda Rights and a lawyer."

Critics have argued that because Tsarnaev is a naturalized citizen and authorities have so far found no links between him and terrorist organizations, he should not be tried as an enemy combatant. Foreigners with that designation have been held and tried in military trials at Guantanamo Bay.

But Graham said a U.S. citizen can be an enemy combatant and still be tried in civilian courts.

Tsarnaev had not been read his Miranda rights as of Saturday, and federal officials have not since said that he has. Miranda rights 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.

Tsarnaev is currently hospitalized in "serious condition," according to Beth Israel Deaconess Medical Center.

A Justice Department official said federal prosecutors would use the public safety exception to the Miranda rule for Tsarnaev, which alloeditws 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.

But Graham and other Republicans argue the public safety exemption can only be applied 48 hours after arrest, and the "enemy combatant" label could extend that exemption for a longer period of time.

It's not clear, however, 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."

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 - Umar Farouk Abdulmutallab, the "underwear bomber" who attempted to blow up a Detroit-bound airliner on Christmas Day in 2009, and Faisal Shahzad for his 2010 attempt to detonate a bomb in Times Square.

soundoff (42 Responses)
  1. lacarriere

    I agree Steve and Joseph.

    Not reading him his rights, and declaring him an enemy combatant so they can question him without a lawyer present seriously discredits a perfectly cabable US civil justice system.

    "Enemy combatant" was a term drubbed up by the Bush administration, so any suspected terrorist wouldn't have the rights of a "prisoner of war" (hard to prosecute somebody for "war crimes" that may or may not have happened in something that wasn't actually a real "war"), and they certainly didn't want those prisoners coming to US civil courts, where open/public courts would have heard all kinds of allegations of torture by US forces. "Enemy combatant" was the "goldilocks solution" from the Bush administration to hold suspected terrorists indefinitely, interrogate without lawyer, and put them infront of a military tribunal instead of a judge/jury.

    Not that I think the guy is innocent, but he hasn't even been formally charged with anything and you have senators wanting him stripped of every right he has as an american citizen. It's almost as disgusting as the bombing itself.

    April 21, 2013 08:49 pm at 8:49 pm |
  2. Glenn Stephens

    Lindsey Graham is an enemy combatant and should be imprisoned immediately.

    April 21, 2013 08:55 pm at 8:55 pm |
  3. Concerned citizen

    Hi Lindsey,, any chance that you hate the President? Just asking!

    April 21, 2013 09:15 pm at 9:15 pm |
  4. windrider2

    I wonder what Cracker Jack box Graham got his law degree from? Like most Republicans, he's a conditional cafeteria constitutionalist who thinks he can pick and choose which citizens are entitled to the most basic constitutional freedoms.

    Of course the GOP is huffing and puffing over this crime, and trying to use it as excuse to kill any more legislation that doesn't advance their agenda. I'm afraid it's going to take another election before the rest of us can start getting our country back.

    April 21, 2013 09:45 pm at 9:45 pm |
  5. bob s

    Ahem. One of the requirements for classifying someone an enemy combatant is that they are captured on a battlefield. If Boston is a battlefield, then Obama can order a drone strike against a target, regardless of citizenship, any time he wishes.

    You don't get to have it both ways. Pick one and stick with it.

    April 21, 2013 09:50 pm at 9:50 pm |
  6. Seoul

    He was an American citizen, even if people want to pretend he was a terrorist operative from a foreign country working as part of an organization.

    If he had been a victim of the bomb blast instead of the one who planted it, he would not be reported in the news as some mysterious, scary foreigner. He would be an immigrant child who became a good citizen, had a college scholarship with academic and athletic awards, a sociable kid who had friends and was active in social media.

    Because he planted the bomb, the slant is now that he is somehow foreign and enigmatic.

    April 21, 2013 10:21 pm at 10:21 pm |
  7. Tim

    If the United States government considers this U.S. citizen as an enemy combatant, meaning he cannot appeal to the Bill of Rights, no matter his crime, no matter his religion, no matter his place of birth, then we are, in this case, not a country bound by the rule of law.

    April 21, 2013 11:04 pm at 11:04 pm |
  8. lerianis

    wigglwagon, you are crazy if you actually think that at all.

    April 22, 2013 12:10 am at 12:10 am |
  9. marcuscassius

    By the GOP's take on things, EVERYTHING in EVERY crime is terrorism. that gives the Fed unlimited power to override anyone any time. Do we really want to live in a Nazi style country?

    April 22, 2013 01:06 am at 1:06 am |
  10. BobInIrvine

    @wiglwagon: "He is an enemy combatant. The nation of Islam has declared war on everyone who is not subservient to them..."

    Really? Who speaks for this "nation" of Islam? Do you really believe there's an Islamic pope? The problem is radicalism. It's irrelevant which religion you want to talk about, as all religions have killed in the name of their deities.

    April 22, 2013 01:09 am at 1:09 am |
  11. norma jean

    This man has been shot and is in hospital care....nothing will be done unless it looks like he will live....Why not wait on all of this analizing until we find out ifor sure if there will even be a live person to charge!!!!.
    .

    April 22, 2013 01:36 am at 1:36 am |
  12. pm

    He does not need to be tried as "enemy combatant". He needs to be tried for multiple counts of murder, multiple counts of attempted murder, and treason if it is found his actions had the intent to undermine the safety of the citizens of the US. He needs to be tried under the same rules that Timothy McVeigh was tried. Parts of the Patriot Act may also apply to this particular person's actions and add additional charges.

    April 22, 2013 02:24 am at 2:24 am |
  13. tom

    There is no nation if Islam, just like there is no nation of Christianity. You would probably not label an anti-abortion christian an enemy combatant if he committed a terrorist act, so your argument is thinly veiled prejudice.

    This is a young man that seems to have been influenced by his older brother , so far there are no direct links to any terrorist groups even... He is a lunatic criminal and should be treated as one..

    Oh and please do not believe what works in 24 works in real life. Entertaining show but that is all...

    April 22, 2013 02:38 am at 2:38 am |
  14. Brett

    So... Correct me if I'm wrong but if they declare him an enemy combatant, then doesn't that essentially make him a pow? In which case (legally speaking) couldn't an attorney argue that his case would fall under UN jurisdiction? In that event he would have more rights than he would if prosecuted criminally.
    I'm no expert on the subject and i could be wrong, but that would be my interpretation of the law in regards to POWs.
    Regardless am I the only one who thinks that the government should be very careful not to overthink and overreach on this matter? I mean it only takes one screw up on their part and a judge could be forced to throw out the case entirely thus allowing the defendant to walk. It wouldn't be the first time prosecutors have screwed up a major case, and it seems to me like some people in Washington are asking for things that could put the case on thin ice right from the start.

    April 22, 2013 02:39 am at 2:39 am |
  15. Dude

    Lindsey should read the Constitution. We shouldn't modify civil rights based on the crime.

    April 22, 2013 05:21 am at 5:21 am |
  16. Rick

    Interesting, a person working under the direction of a foreign national who has basically declared war against the world,(yes we are part of the world) has rights the same as I do under the US Constitution? He attacked innocent civilians with weapons of war without regard for their safety or lives he did not however target those well and able to protect themselves, in fact he hid from them like a coward.
    As far as imminent danger, what else has been planned or where else have these two fine outstanding citizens planted bombs or traps to hurt or maim others? Imminent danger, maybe not but definitely potential danger.

    April 22, 2013 06:28 am at 6:28 am |
  17. KellyinCA

    I'm not quite sure what omitting the Miranda Warning would do to help the interrogation team if the suspect, like most suspects, is aware of his rights and chooses to exercise them. I'm not a lawyer, but omitting the notification does not, nor should it imply that a suspect does not have those rights. All a suspect would need to say under such circumstances is "I am aware of my right against self-incrimination and of my right to an attorney. I have nothing to say. I want to confer with a lawyer." If he cannot speak and refuses to (or cannot) communicate in any other way, then any attempt to interrogate him would be fruitless until he at least met with his attorney. I'm as curious as the rest of us about what the suspect might have to say, but not if the cost for the information is the surrender of basic human and civil rights.

    April 22, 2013 07:13 am at 7:13 am |
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