The capture of the alleged Boston Marathon bomber has uncorked a long simmering national political debate about the way forward in this, the second decade of the war on terror: Treat the American prisoner as an enemy of the state, like a Guantánamo 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 teen terrorist “an enemy combatant,” a technical term for a war prisoner — and subject him to Guantánamo-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 Guantánamo, just giving him the same status as indefinite detainees there.
A U.S. Justice Department official characterized it as throwback thinking to the Bush administration. 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 Sunday that 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 held under close guard at Boston’s Beth Israel Deaconess Medical Center since his capture Friday night following several shootouts, reported to be intubated, in serious condition.
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 American 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, brought to Guantánamo 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.