The capture of the alleged Boston Marathon bomber has uncorked a long-simmering national political debate about the way forward in the second decade of the war on terrorism: Treat the American prisoner as an enemy of the state, like a Guantanamo captive, or let him have a lawyer, the right to remain silent and charge him like a common criminal?
Soon after Friday’s capture of Dzhokhar Tsarnaev, 19, federal law enforcement forged a path in the middle. It invoked a public safety exception to the law that delayed for some days his right to an attorney, and sought to interrogate him for his knowledge of potential future explosions.
But, once it was clear that Tsarnaev’s health delayed those interrogations, Sen. Lindsey Graham, R-S.C., waded in and invoked his role writing the law that lets the Pentagon try alleged terrorist by military commission. He urged the Obama administration to declare the suspected terrorist “an enemy combatant,” a technical term for a war prisoner — and subject him to Guantnamo-style FBI and CIA interrogation.
Once the interrogators had extracted any al-Qaida or other conspiracy secrets, Tsarnaev could get a lawyer, Graham argued, while federal prosecutors build a case against for trial in federal court because he’s a U.S. citizen.
“A citizen can be an enemy combatant,” the senator said on CNN’s “State of the Union,” invoking the category of detainee at the U.S. base in Cuba. “He is not eligible for a military commission trial. It should be a federal trial.”
He had the support of fellow Republican senators Kelly Ayotte of New Hampshire and John McCain of Arizona, who in a joint statement with Rep. Peter King, R-N.Y., didn’t outright advocate sending Tsarnaev to Guantanamo, just giving him the same status as indefinite detainees there.
The American Civil Liberties Union called the idea unacceptable. And Sen. Dianne Feinstein, D-Calif, chair of the Senate intelligence committee, called it lamentable.
“I very much regret the fact that there are those that want to precipitate a debate over whether he’s an enemy combatant or whether he is a terrorist, a murderer, et cetera,” Feinstein said on “Fox News Sunday,” calling the proposal “unconstitutional.”
ACLU Executive Director Anthony Romero said the suspect should be “charged as a criminal” before federal courts and granted “all protections given to criminal defendants.”
Throughout the weekend, Tsarnaev was unable to speak. He was sedated and has been held at Boston’s Beth Israel Deaconess Medical Center since his capture Friday night.
Only two Americans have been held as enemy combatants, Graham’s recommended course of action, since the Sept. 11, 2001, attacks:
• Jose Padilla, who was captured on U.S. soil, like Tsarnaev. He was held for more than three years at a Navy brig before he was charged, sent to Miami and convicted of terror conspiracy charges. He’s now in federal prison.
• Yasser Hamdi, who was captured in Afghanistan, taken to Guantanamo, and then held in Navy brigs in Norfolk, Va., and Charleston, S.C., before he was sent to his parents in Saudi Arabia in exchange for renouncing his American citizenship.
John Walker Lindh, who was captured in Afghanistan around the same time as Hamdi, was never taken to Guantanamo and was never held in the U.S. as an enemy combatant. He pleaded guilty to aiding the Taliban in exchange for a 20-year sentence.
On Sunday, a Justice Department official, who spoke on the condition of anonymity because he was not authorized to discuss the case publicly, said the White House was not considering enemy combatant status for Tsarnaev, whose elder brother was killed in a shootout with police. The official called the younger, surviving suspect “a naturalized American.” Reports said he became a citizen on Sept. 11, 2012.
While the Bush administration chose to process certain U.S. citizens as enemy combatants, the official said, President Obama has “made clear that this administration, as a matter of policy, will not authorize the indefinite military detention without trial of American citizens, regardless of their place of capture.”
Federal officials invoked a “public safety exception” to postpone Tsarnaev’s right to an attorney. The exception, the Justice Department official said, “allows for law enforcement to quickly interrogate a suspected terrorist without giving Miranda warnings under certain circumstances to gain critical intelligence and national security information.”
Federal officials invoked the exception almost immediately after the alleged terrorist’s capture. The process to categorize a U.S. citizen as an enemy combatant “would take considerable time,” the Justice official said.
McCain spokesman Brian Rogers said Sunday that the senator agreed with Graham on how to proceed and that news reports Sunday had “mischaracterized” McCain’s desire to send Tsarnaev to Guantanamo. The offices of Ayotte and King, who appeared to support making Tsarnaev a military prisoner, did not respond to emailed requests for clarification.
Graham invoked his 30 years of experience as a military lawyer to essentially confront the White House in broadcast comments.
“He’s not entitled to Miranda rights if he’s a terrorist who’s associated himself with enemies of the nation,” he said on Fox television Saturday night. “No American citizen is immune from having the law of war applied to them if they collaborate with the enemy.”
Designating him as an enemy combatant would keep him away from a lawyer and give the FBI and CIA time to interrogate him, Graham said. “I want to find out if he was in fact involved with al-Qaida and other terrorist groups. Clearly he is a prime candidate for that designation.”