A pointed legal and political fight has begun over whether the wounded ethnic Chechen suspected of being one of two Boston Marathon bombers should be treated as an enemy combatant, instead of as a conventional criminal.
With formal charges imminent, Republican lawmakers want the Justice Department to designate 19-year-old Dzhokhar Tsarnaev as an enemy combatant, while senior Democrats warn that the move is unwarranted.
The outcome will determine how Tsarnaev is treated, and, in particular, how he is questioned. Though the naturalized U.S. citizen appears ineligible for the kind of military commissions established for foreign terrorists, designation as an enemy combatant could subject him to extended, isolated interrogation.
“We should be allowed to question him for intelligence gathering purposes to find out about future attacks and terrorist organizations that may exist that he has knowledge of,” Republican Sen. Lindsey Graham of South Carolina said Sunday on CNN’s “State of the Union.” “That evidence cannot be used against him in trial. That evidence is used to protect us as a nation.”
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Politically, too, the Justice Department’s eventual decision will have consequences. Congressional Republicans are leading the call for Tsarnaev to be designated an enemy combatant, and they appear poised to use the issue against the Obama administration if they get a chance.
“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,” Democratic Sen. Dianne Feinstein of California, chair of the Senate Permanent Select Committee on Intelligence, said on Fox News Sunday.
Even if he’s not designated an enemy combatant — or “unlawful” combatant, in the term preferred by the Obama administration — Tsarnaev can be questioned for a time without an attorney present under a public safety exception to the standard Miranda rights. The U.S. Attorney for Massachusetts, Carmen Ortiz, said Friday that “the government has that opportunity now” to invoke the exception.
On Sunday, the surviving suspect was under close guard at Boston’s Beth Israel Deaconess Medical Center. Since his capture Friday night following several shootouts, Tsarnaev has been intubated and in serious condition, according to officials. Republican Sen. Dan Coats of Indiana, a member of the Senate Intelligence Committee, said Sunday that Tsarnaev was shot in the throat, rendering him speechless for at least the time being.
But Sunday night, USA Today and other media were reporting that the suspect was awake and was answering questions in writing.
Tsarnaev’s brother and suspected bombing accomplice, 26-year-old Tamerlan Tsarnaev, died early Friday morning after a car chase and confrontation with police that ended in some 200 shots being fired. Republican and Democratic lawmakers agreed Sunday that they need more information about the FBI’s questioning of Tamerlan Tsarnaev in 2011 at the request of the Russian government.
Dzhokhar managed to flee the Friday night shootout, inadvertently hitting his brother with a stolen Mercedes SUV. Ditching the car and escaping on foot, Dzhokhar hid out in a boat parked behind a house in suburban Watertown, Mass., until being discovered Friday night.
State and federal charges alike could be brought against the surviving Tsarnaev as early as Sunday night or today, for the bombing last Monday that killed three and injured more than 180. More than 50 individuals remained hospitalized Sunday, some of them with amputated limbs, according to hospital spokespersons.
The state of Massachusetts does not allow for the death penalty. The federal government does, for crimes including first-degree murder and the murder of a law enforcement officer. The myriad charges against Tsarnaev will likely include the killing a 26-year-old Massachusetts Institute of Technology police officer, gunned down Friday.
“There’s going to be a great deal of evidence put together to be able to convict (Tsarnaev), and it should likely be a death penalty case under federal law,” Feinstein said.
Characterized by President Barack Obama last week as “an act of “terrorism,” the Boston Marathon bombing falls into a complicated legal terrain that’s been shaped by the administrations of both Obama and former President George W. Bush, as well as by the Supreme Court.
The court, in a 1966 case prompted by the interrogation of suspected Arizona rapist Ernesto Miranda, determined suspects must be informed that they have the right to remain silent as well as the right to an attorney. These protections, though, are not absolute.
In an interview with The New York Times, Graham acknowledged that if no evidence emerges linking Tsarnaev to al-Qaida then he should not continue to be held as an enemy combatant. But he argued that, given the need to find out if Tsarnaev knows of other planned attacks or terrorist operatives, the government can and should hold him as a combatant while it searches for any such links.
“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Graham told the Times. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with al-Qaida — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”