Key Republicans are calling on the Obama administration to declare captured Dzhokhar Tsarnaev, the 19-year-old suspect in the bombings at the Boston Marathon, an enemy combatant subject to the laws of war so intelligence officials can continue to interrogate him for as long as they deem necessary.
Authorities captured Tsarnaev in Watertown, Mass. huddled and bleeding profusely in a private boat. He was hospitalized Saturday after being further wounded in a firefight with police Friday.
Federal law enforcement officials are invoking the public-safety exception and will pursue their investigation into the Boston bombings for the at least the next 48 without reading Mr. Tsarnaev’s his Miranda rights against self-incrimination.
That decision by the Obama administration is reviving a contentious and constitutionally charged debate over how best to handle interrogations and terrorism cases under U.S. laws governing the criminal justice system and the law of war.
The FBI says the exception permits law enforcement to engage in a “limited and focused unwarned interrogation” and and allows the government to introduce the suspect’s statements during interrogation as direct evidence in any subsequent criminal trial.
The FBI has released a clearer image of Suspect No 2 in the Boston bombings, Dzhokhar A. Tsarnaev, age 19. (Courtesy of the FBI)
But Republican Sens. John McCain, Lindsey Graham, Kelly Ayotte, as well as Rep. Peter King, argue that relying on the public safety exception is a national security mistake.
The group of GOP lawmakers argues that the blasts at the end of the Monday’s marathon that killed three and injured more than 170 people were clearly an attempt to terrorize a major American city, and the accused perpetrators should be treated as enemy combatants, not common criminals attempting to profit from a criminal enterprise.
“The suspect, based upon his actions, clearly is a good candidate for enemy combatant status,” they said in a statement. “We do not want this suspect to remain silent.”
While the group applauded the Obama administration’s decision to have the High-Value Detainee Interrogation Group, or HIG question Mr. Tsarnaev, they worry that that the temporary time frame the public safety exception to the Miranda law provides will be far too short to allow the type of questioning that needs to occur.
The HIG, which President Obama created in 2009, is made up of agents from the FBI, CIA and Defense Intelligence Agency, who follow strict policies on acceptable interrogation practices and work together to share the information across their multiple intelligence agencies.
“We are encouraged our High value detainee interrogation team (HIG) is now involved and working to gather intelligence about how these terrible acts were committed and possibility of future attacks,” he said. “A decision to not read Miranda rights to the suspect was sound and in our national security interests.”
“However, 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,” they continued. “It could severely limit our ability to gather critical information about future attacks from this suspect.”
The American Civil Liberties Union quickly weighed in on the opposite side of the Miranda argument Saturday, arguing that invoking the rare public-safety exception triggered by the need to protect the public from immediate danger is only a temporary solution.
ACLU Executive Director Anthony Romero told the Boston Globe that the exception applies only when there’s a continued threat to public safety and is not an pen-ended exception to the Miranda rule.
“The public-safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect,” Mr. Romero said. “The public safety exception would be meaningless if interrogations are given an open-ended time horizon.”
Requirements on law enforcement officials to read ordinary criminals their Miranda rights come from a 1966 Supreme Court case. In order to protect against self-incrimination, police must first read suspects their rights if they want to use statements at trial that a defendant made while in custody.
The focus right now, the Republican lawmakers countered, should be on gathering intelligence from the suspect, not on a future domestic criminal trial that may take years to complete.
“We hope the Obama administration will consider the enemy combatant option because it is allowed by national security statutes and U.S. Supreme Court decisions,” they added.
Following the statement, the group of four Republicans also laid out the case for the administration relying on the law of war in their treatment of Mr. Tsarnaev, pointing to Supreme Court-tested elements of the military commission law Mr. Graham wrote and shepherded through the Senate.
According to that law, American citizens who attack the homeland or collaborate with U.S. enemies can be held as enemy combatants and are not entitled to Miranda rights or an attorney. The questioning of an enemy combatant for national security purposes has no limit or scope.
“In a case like this it could take weeks to prepare the questions are needed to be asked and months before intelligence gathering is completed,” the lawmakers argue.
Because the suspect is an American citizen, any future trial would be in the civilian courts, not through a military commission, a provision Mr. Graham personally authored.