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.
John Walker Lindh, who was captured in Afghanistan around the same time as Hamdi, was never taken to Guantánamo, never held in the U.S. as an enemy combatant. Instead, he faced federal trial in Virginia, pleaded guilty to aiding the Taliban in exchange for a 20-year sentence.
On Sunday, a Justice Department official, who spoke on condition of anonymity because he was not authorized to discuss the case publicly, said the White House was not considering enemy combatant status for Tsarnaev, whose elder brother was killed in a shootout with police. The official called the younger, surviving suspect “a naturalized American.” Reports said he became a citizen on Sept. 11, 2012.
While the Bush administration chose to process certain U.S. citizens as enemy combatants, the official said, Obama has “made clear that this administration, as a matter of policy, will not authorize the indefinite military detention without trial of American citizens, regardless of their place of capture.”
Federal officials invoked a “public safety exception” to postpone Tsarnaev’s right to an attorney. The exception, the Justice Department official said, “allows for law enforcement to quickly interrogate a suspected terrorist without giving Miranda warnings under certain circumstances to gain critical intelligence and national security information.”
Federal officials invoked the exception almost immediately after the alleged terrorist’s capture. The process to categorize a U.S. citizen as an enemy combatant “would take considerable time,” the Justice official said.
McCain spokesman Brian Rogers said Sunday that the senator agreed with Graham on the way forward and that news reports Sunday had “mischaracterized” McCain’s desire to send Tsarnaev to Guantánamo. The offices of Ayotte and New York Rep. Peter King, who appeared to support making Tsarnaev a military prisoner, did not respond to emailed requests for clarification.
Graham invoked his 30 years of experience as a military lawyer to essentially confront the White House in broadcast comments.
“He’s not entitled to Miranda Rights if he’s a terrorist who’s associated himself with enemies of the nation,” he said on Fox TV Saturday night. “No American citizen is immune from having the law of war applied to them if they collaborate with the enemy.”
Designating him as an enemy combatant would keep him away from a lawyer and give the FBI and CIA time to interrogate him, Graham said. “I want to find out if he was in fact involved with al-Qaida and other terrorist groups. Clearly he is a prime candidate for that designation.”
Politicians debated what they want Boston law enforcement to do in the marathon bombing case on the day the military at Guantánamo reported that more than half the captives there were on hunger strike in a several months old protest over their indefinite detention.
A total of 84 Guantánamo prisoners were classified as hunger strikers at the U.S. military base in Cuba, Army Lt. Col. Samuel House said Sunday. The prison’s population is 166.
House added by email that 16 of the 84 prisoners were being force-fed Sunday, and said he erred a day earlier in describing 17 detainees as getting nutritional supplements by tubes snaked up a nostril, down the back of each captive’s throat until it reached his stomach.
Five of the 84 were in the hospital, House said, none with life-threatening conditions.
Reporters Michael Doyle and Jonathan Landay of the McClatchy Washington Bureau contributed to this report.