The New York Times reports:
Some Republican lawmakers want President Obama to declare the surviving Boston bombing suspect an enemy combatant in order to question him without a lawyer and other protections of the criminal justice system, intensifying a recurring debate over how to handle terrorism cases arising inside the United States.
But while the suspect, Dzhokhar Tsarnaev, a naturalized American citizen, is a Muslim, there is no known evidence suggesting that he is part of Al Qaeda. The United States is engaged in an armed conflict with Al Qaeda, not all Muslim extremists. As a result, the dispute is pushing beyond familiar arguments and into new territory.
Senator Lindsey Graham, Republican of South Carolina, is among the earliest and most vocal proponents of declaring Mr. Tsarnaev an enemy combatant. Others include Senators Kelly Ayotte of New Hampshire, Saxby Chambliss of Georgia and John McCain of Arizona, as well as Representative Peter T. King of New York, all also Republicans.
The Obama administration has said it thinks terrorism suspects arrested inside the United States should be handled exclusively in the criminal justice system. It has indicated no intention to do otherwise in Mr. Tsarnaev’s case, but the issue is taking on political currency, underscoring a major divide on national security legal policy.
Senator Carl Levin, a Michigan Democrat who is the chairman of the Senate Armed Services Committee, said in a statement that the laws of war did not apply to Mr. Tsarnaev and that there was so far no evidence that he was “part of any organized group, let alone Al Qaeda, the Taliban or one of their affiliates — the only organizations whose members are subject” to detention as a part of war.
“In the absence of such evidence, I know of no legal basis for his detention as an enemy combatant,” Mr. Levin said. “To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.”
In an interview, Mr. Graham acknowledged that if no evidence were to emerge linking Mr. Tsarnaev to Al Qaeda, then he should not continue to be held as an enemy combatant. But he argued that given the need to swiftly find out if Mr. Tsarnaev knew of other planned attacks or terrorist operatives, the government could and should hold him as a combatant while it searched for any such links.
“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Mr. Graham said. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — 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.”
Mr. Graham said 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war. He also said he believed that federal judges would grant the government that amount of leeway.
Beyond the absence of known links between Mr. Tsarnaev and Al Qaeda, it is also unclear whether the Constitution permits the government to hold citizens arrested on domestic soil as enemy combatants. Though Mr. Graham believes that it would be lawful, other lawmakers disagree. Neither Congress nor the Supreme Court has resolved the question.
During the Bush administration, the Supreme Court upheld the indefinite military detention of Yaser Esam Hamdi, an American citizen who was captured carrying a weapon on the Afghanistan battlefield.
But the court never resolved the case of another American, Jose Padilla, whom the Bush administration held as an enemy combatant for several years after his arrest in Chicago. Two different federal appeals courts disagreed about whether it was lawful to hold someone like Mr. Padilla in indefinite detention without trial, and the Bush administration transferred him back to the civilian court system before the Supreme Court took up the case.
In the Hamdi ruling, Justice Sandra Day O’Connor wrote “there is no bar to this nation’s holding one of its own citizens as an enemy combatant.” But she also wrote the decision was limited to Mr. Hamdi’s “narrow circumstances.” She also said the purpose of wartime detention was to keep captured enemies from returning to fight, adding, “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.”
Mr. Graham said the purpose of holding Mr. Tsarnaev as a military detainee would be to question him at length without any lawyer. Though the Obama administration has said it would use a public-safety exception to the Miranda rule to question him for a period without warning him of his rights to remain silent and have a lawyer, Mr. Graham said that would at best gain only a few days before a lawyer intervened.
Mr. Graham also acknowledged that ultimately Mr. Tsarnaev must be transferred back to the civilian criminal justice system for prosecution, because the statute authorizing military commissions — which he helped write — does not apply to United States citizens. Mr. Graham, one of the leading Republican voices opposing the torture of terrorism suspects, emphasized that interrogation as an enemy combatant would not mean inflicting suffering on Mr. Tsarnaev in order to make him talk, and that anything he said in military detention should not be used as courtroom evidence.
But Mr. Graham rejected the view that the Federal Bureau of Investigation might be equally or more effective than intelligence officials at persuading Mr. Tsarnaev to provide information, even with a defense lawyer at his side, since the law enforcement officials would have the leverage of being able to float more favorable treatment in exchange for cooperation as part of a potential plea bargain. He said interrogators needed to build a rapport with a prisoner, suggesting that any presence of a lawyer would disrupt that dynamic.
“That is, to me, the dumbest way to induce someone to talk,” he said of such tools and tactics of law enforcement officials. “I want intelligence officials trained in the intelligence process to have a chance to talk to him, without a lawyer.”