April 22, 2013 -- The surviving suspect in the Boston Marathon bombing, Dzhokhar Tsarnaev, will not be tried as an enemy combatant, the White House said today, rejecting calls from some lawmakers to do so.
"He will not be treated as an enemy combatant. We will prosecute this terrorist through our civilian system of justice," White House Press Secretary Jay Carney told reporters today. "Under U.S. law, United States citizens cannot be tried in military commissions. And it is important to remember that since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."
Sen. Lindsey Graham, R-S.C., today blasted the decison as "premature."
"It is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war," Graham told reporters.
In the wake of 9/11, Congress passed a joint resolution called the Authorization for Use of Military Force, which granted the president the power to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
A Supreme Court ruling three years later seemed to suggest that a U.S. citizen captured while fighting for al-Qaida could legally be held as an "enemy combatant," but left unanswered was how to proceed if the accused is nabbed on U.S. soil.
Republican senators said this weekend that the enemy-combatant designation was appropriate in the case of Tsarnaev, the Kyrgyzstan-born naturalized U.S. citizen. He was charged today with using a weapon of mass destruction in connection with the blasts that killed three and wounded at least 176 last week.
"I think we should stay with enemy combatant until we find out for sure whether or not there was a link to foreign terrorist organizations," Sen. Dan Coats, R-Ind., told ABC's George Stephanopoulos on "This Week."
"Even though he's a citizen. There have been exceptions to this before with the public safety issue, of course, on Miranda rights. I think we ought to keep that option open until we find out whether or not there was a connection to a terrorist organization."
Sen. Chuck Schumer disagreed.
"I think that the good news is we don't need enemy combatant to get all the information we need out of him," Schumer, D-N.Y., said on CNN's "State of the Union" Sunday. "The one court that has ruled has allowed a lot of flexibility in the public safety exception before you Mirandize somebody.
"But second, at any time, what's called a HIG, 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."
Carney affirmed Monday that the White House sides with Schumer, deeming it unnecessary to call 19-year-old Tsarnaev an enemy combatant.
"The effective use of the criminal justice system has resulted in the interrogation, conviction and detention of both U.S. citizens and noncitizens for acts of terrorism committed inside the United States and around the world. The system has repeatedly proven that it can successfully handle the threat that we continue to face," he said, citing Times Square attempted-bomber Faisal Shahzad, underwear bomber Umar Farouk Abdulmutallab and others as examples.
"This is absolutely the right way to go and the appropriate way to go," Carney said. "And when it comes to United States citizens, it is against the law to try them in military commissions."
GOP Sen. Graham took issue with the idea that a lawyer might be present during questioning, wresting control of the interrogation away from U.S. intelligence gatherers. Graham went on to add that others accused of terrorism such as Shahzad and Abdulmutallab should also have been held as enemy combatants.
"There's a disturbing pattern here, quite frankly, of not gathering intelligence when that opportunity exists," he said.
But Antonia Chayes, a professor at the Fletcher School of Law and Diplomacy at Tufts University in Medford, Mass., called the idea of holding Tsarnaev under that designation "hare-brained" and "ridiculous," saying it is generally reserved for those engaged in conflict on the battlefield who can't be extradited to the United States.
Although Tsarnaev will not be questioned as an enemy combatant, he also will not be read his Miranda rights before being interrogated by the HIG group to which Schumer referred.
Under an exception intended to preserve public safety, the Justice Department has decided that the surviving suspect will be questioned without first hearing that he has the right to a lawyer or to remain silent because of concerns of an imminent threat.
The American Civil Liberties Union has objected to such reasoning.
"Every criminal defendant is entitled to be read Miranda rights," the group wrote in a statement released Saturday. "The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule.
"Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel. We must not waver from our tried-and-true justice system, even in the most difficult of times. Denial of rights is un-American and will only make it harder to obtain fair convictions."
A conviction could be put in jeopardy if DOJ waited an unreasonable amount of time to Mirandize the suspect, according to Chayes of Tufts University, but that would depend on the length of time, the judge and the facts of the case, many of which are unclear to the public.
"I think it really turns on the facts, and we don't know all the facts," she said. "Is there evidence of other participants of this that we have not been informed about? Are there rumors about it? Are there hints about it?
"If he's kept like that for, let's say, three weeks, you begin to wonder how in the world can they justify that. But if it's three days or even five days or something like that, then ?that sounds to me like reasonable."
Laura Dickinson, Oswald Symister Colclough Research Professor of Law at George Washington University in Washington, pointed out that Miranda rights still protect the suspect from incriminating himself before they are read by making anything he says at that point inadmissible in court.
"Here, it is unlikely the prosecution will ever need to introduce the defendant's statements; there will be so much other evidence against him," Dickinson wrote in an email to ABC News today.
"Accordingly, there is unlikely to be much impact from the lack of reading Miranda rights."