Senators say Tsarnaev should be declared ‘enemy combatant’

<i> This post has been corrected. See note at bottom for details. </i>

WASHINGTON -- Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), said Saturday in a joint statement that alleged Boston Marathon bomber Dzhokhar Tsarnaev should be denied a defense attorney and declared an “enemy combatant.”

They added in a statement on Graham’s Facebook page, “It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city.”

The two Republican conservatives have demanded that terror suspects not be Mirandized or tried in federal courts and instead be shipped to the detainee prison on Guantanamo Bay, Cuba.

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But the Supreme Court has never said that a U.S. citizen captured on U.S. soil, like Tsarnaev, could be treated as an enemy combatant.


“The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans,” the senators said. “We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

“Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.”

In a separate tweet, Graham added, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”

Tsarnaev was arrested Friday night in Watertown, Mass. He was being held at a local hospital, and a Justice Department official said he likely would be charged later Saturday. Carmen Ortiz, the U.S. Attorney in Boston, invoked a “public safety exemption in cases of national security and potential charges involving acts of terrorism” as a reason not to immediately read him his Miranda rights against self-incrimination.

In 2011, a Justice Department memo expanded the use of the public safety exception in domestic terrorism cases, so that it can be invoked in exceptional circumstances even when there is not an imminent safety threat. The changes were made after a controversy over the handling of the suspect in the Christmas Day 2009 airline bomb attempt, Umar Farouk Abdulmutallab, who was questioned by FBI agents for less than an hour before being read his rights.

The American Civil Liberties Union, meanwhile, said in a statement that “every criminal defendant” is entitled to Miranda rights, noting that Tsarnaev became a naturalized American citizen.

“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,” the ACLU said. “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.”

For the record, 3:30 p.m. April 20: A headline on this post said the senators had called for Tsarnaev to be sent to Guantanamo. They said he should be declared an enemy combatant.


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Times staff writer Ken Dilanian contributed to this report.