Boston bomb suspect will not be designated an ‘enemy combatant’

The suspect in the Boston Marathon bombings was read his Miranda rights on Monday after the White House decided not to try him as an enemy combatant.

White House press secretary Jay Carney argued the White House could gain intelligence from 19-year-old bombing suspect Dzhokhar Tsarnaev without military detention, pointing to previous terror suspects who have been prosecuted in federal court.

{mosads}The “system has repeatedly proven that it can successfully handle the threat” of terrorists, said Carney, citing the trials of Faisal Shahzad, who attempted to bomb Times Square in New York, and Umar Farouk Abdulmutallab, who tried to blow up a flight bound for Detroit with explosives hidden in his underwear. 

“This is absolutely the right way to go and the appropriate way to go,” Carney said at Monday’s White House press briefing.

He maintained that the court system has been effective in trying hundreds of terrorists since the Sept. 11 attacks.

Tsarnaev was read his Miranda rights Monday by a magistrate judge as he was charged with using a weapon of mass destruction to kill three people and injure more than 200.

The Justice Department had waited to read him his Miranda rights until Monday under an exemption that’s been established for situation where public safety is at stake.

Republicans criticized the Obama administration’s decision, calling it premature and suggesting the White House risked losing valuable information from Tsarnaev, who along with his older brother, Tamarlan, are accused of terrorizing Boston for much of last week. The elder Tsarnaev died after a Friday shootout with police.

“It seems premature to declare that we will not treat Tsarnaev as an enemy combatant since we do not know enough about his affiliations,” House Armed Services Chairman Buck McKeon (R-Calif.) said in a statement. “Clearly American citizens must be tried in civilian courts, but the same citizen, having viciously attacked his countrymen, must be exploited for his intelligence value before any trial begins.”

Sen. Lindsey Graham (R-S.C.) convened a hastily arranged press conference in response to the White House announcement. He and other Republicans want Tsarnaev interrogated as an enemy combatant, though they also believe the law requires him to be prosecuted through the federal court system.

“It would disturb me greatly if this administration is relying exclusively on the criminal justice system to gather intelligence,” Graham said. 

There are several key differences in questioning Tsarnaev as a federal suspect rather than under the law of war as an enemy combatant.

Under the law of war, Tsarnaev is not provided a lawyer, but his statements cannot be used against him in court.

In the federal system, Tsarnaev is entitled to a lawyer if one is requested and has the right to remain silent.

The Obama administration waited several days to read Tsarnaev his Miranda rights under the public safety exemption, but the Justice Department could have opted to continue holding him without doing so, legal experts said. 

 Had this occurred, his statements would not be admissible in court.

Benjamin Wittes, a senior fellow at the Brookings Institution, said there is no hard and fast rule for how long a suspect can be held under the exemption.

“The longer it goes, the more difficulty you’re going to have,” said Wittes, who is editor of the blog “Lawfare.”

Carney said the Justice Department and Attorney General Eric Holder, as well as the entire national security team, supported not trying the terror suspect as an enemy combatant.

He would not speak specifically about Obama’s comments on the matter but said Obama’s national security team is “in agreement” on the approach.

The White House referred specific questions to the FBI, and the FBI 

declined comment.

Hawks on foreign policy like Graham and Sen. John McCain (R-Ariz.) have focused their arguments for military detention on intelligence gathering. They have warned that intelligence could be lost by allowing Tsarnaev access to an attorney and the right to remain silent.

“The last thing in the world I want to do is turn intelligence gathering over to the terror suspect and their lawyer,” Graham said Monday.

Others argue that the administration doesn’t have the legal ability to declare Tsarnaev an enemy combatant. Wittes said that the only way for him to be an enemy combatant is if he is connected to al Qaeda or an associated force, citing legal language in the 2001 Authorization for the Use of Military Force and the 2012 National Defense Authorization Act.

“This is not a political declaration,” Wittes said.

Democrats have pushed back against Republican calls to make Tsarnaev an enemy combatant.

“Like it or not, this is an American citizen, and he will be entitled to his American rights,” Rep. Michael Capuano (D-Mass.), whose district represents Boston, said on CNN Sunday. “If we don’t do that, we become less of ourselves. … If we do anything but embrace what America is about, then the terrorists would have won.”