On Friday, while the manhunt for suspected Boston bomber Dzhokhar Tsarnaev continued, Senator Lindsey Graham (R-SC) published a series of tweets suggesting that he wanted to revive the George W. Bush-era debates about whether terrorism suspects can be denied many constitutional rights and tried by a military tribunal. In a statement Graham released yesterday with Sen. John McCain (R-AZ), Sen. Kelly Ayotte (R-NH) and Rep. Pete King (R-NY), however, the four conservatives acknowledge that shunting Tsarnaev into a military commission is not a lawful opinion. Tsarnaev is an American, and federal law does not permit U.S. citizens to be tried under the military commissions system.
On CNN this morning, Graham articulated what now appears to be the conservative position on how Tsarnaev should be treated:
GRAHAM: This man, in my view, should be designated as a potential enemy combatant and 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, and that evidence cannot be used against him in trial. That evidence is used to protect us as a nation. Any time we question him about his guilt or innocence, he’s entitled to his Miranda rights and a lawyer, but we have the right under our law — I’ve been a military lawyer for 30 years — to gather intelligence from enemy combatants. And a citizen can be an enemy combatant.
He is not eligible for military commission trial. I wrote the military commission in 2009. He cannot go to military commission.
Graham’s repeated insistence that Tsarnaev be treated as an “enemy combatant” remains concerning. In his statement with McCain, Ayotte and King, Graham claims that people like Tsarnaev can be “held as enemy combatants” — a view which suggests they could be held indefinitely even if they are not convicted by a court of law. Ultimately, however, the question of what would happen if Tsarnaev were not lawfully convicted by a civilian court is likely to be moot, as the evidence against him is very strong.
In the same CNN segment, Sen. Chuck Schumer (D-NY) warns against wading into the question of whether Tsarnaev should be designated an enemy combatant, but he largely agrees with Graham about how Tsarnaev should be questioned. According to Schumer, “at any time what’s called a H.I.G., a high value interrogation group composed of the FBI, CIA and anyone else can question him without a lawyer in a secured situation and find out whatever they need.”
The FBI did not read Tsarnaev his Miranda rights following his arrest on Friday night, invoking what is known as the “public safety exception” to this requirement. Under that exception, law enforcement may temporarily delay reading a suspect his rights for the narrow purpose of asking “questions necessary to secure their own safety or the safety of the public.”
As both Schumer and Graham note, there is a price if law enforcement or intelligence agents subject Tsarnaev to further interrogation without reading him his rights or permitting him to invoke his rights to remain silent or to have an attorney present. No information obtained in violation of Miranda can be used against Tsarnaev at his trial. Nevertheless, because the evidence against Tsarnaev is already so strong, even before he is questioned, it is likely that the FBI and CIA will be willing to pay this price in order to question this suspect without an attorney present.