May 01 2013

Failure to call Tsarnaev enemy combatant hampers investigation

by U.S. Senators Lindsey Graham (R-SC), Kelly Ayotte (R-NH) and John McCain (R-AZ)

In the aftermath of the tragic terrorist attack in Boston, Americans rightly seek justice. They also want to ensure that we collect as much information as we can from suspect Dzhokhar Tsarnaev to keep Americans safe from other threats.


That’s exactly why it was important to question Tsarnaev at length to find out whether the brothers had acted alone and whether there are any future attacks planned against us.


Consistent with the law, based on a potential affiliation with Al Qaeda, the president could have designated Tsarnaev an enemy combatant to collect intelligence to protect our country. Following the extended interrogation, Tsarnaev would have been transferred to a federal court for trial.


Instead, after only limited interrogation, the Department of Justice quickly charged Tsarnaev in federal court. The magistrate judge accordingly advised him of his Miranda rights and appointed him counsel, and Tsarnaev invoked his right to remain silent. Mike Rogers, chairman of the House Intelligence Committee, said this week that the FBI had not fully interrogated the suspect before the judge arrived and advised Tsarnaev of his right to remain silent. 


As a US citizen, Tsarnaev has the right to remain silent whether he is reminded of those rights or not. The only reason to quickly read a suspect his Miranda rights is to ensure his confessions can then be used in court against him. Yet the evidence against Tsarnaev is so strong that we hardly need a confession to obtain a conviction. 


It was important to question Tsarnaev at length to find out whether the brothers had acted alone. 


A recent Globe editorial attempted to defend this decision by arguing that the public safety exception under Miranda is sufficient. But that exception was intended to be used in rare instances and only for an extremely limited period of time — which is nowhere near sufficient in order to gather the information we need to protect our country.


That includes information about the suspect’s brother, Tamerlan, who visited Dagestan and Chechnya in 2012. According to a Russian intelligence report, he may have met with a suspected militant there. Tamerlan’s online postings also indicate he was a follower of Al Qaeda-linked extremists. While our law enforcement and intelligence personnel are highly skilled, mere hours of questioning under a public safety exception are not enough time to determine all that the suspect knows.


If he were held as an enemy combatant to determine whether he had ties to foreign terrorist organizations, Tsarnaev’s constitutional rights would be protected. He would be entitled to a habeas hearing before a federal judge, generally within 30 days, to determine whether or not there is sufficient evidence to justify enemy combatant status to allow for continued intelligence gathering and questioning. After sufficient intelligence has been obtained, the suspect could still be charged in federal court and would have all the rights associated with that system. And none of the evidence gained from his questioning without a Miranda warning could be used against him during trial, consistent with our Constitution.


The decision to bring Tsarnaev immediately into our civilian system — where he was advised of his right to remain silent and given counsel — effectively cedes basic intelligence gathering to his defense lawyers. While defense lawyers perform an important function in our society, they should not be the gatekeepers of intelligence vital to our national security.


We have great respect for our criminal justice system, and we have no doubt that the Boston suspect will be successfully prosecuted in civilian court. The larger point the Globe misses is that, in the wake of a terrorist attack, gathering intelligence to protect national security is more important than obtaining a conviction. 


If every time we are attacked on American soil we put terrorist suspects immediately into civilian custody, we will lose valuable information needed to protect our country. Holding Tsarnaev as an enemy combatant to determine whether he has ties to terrorist groups, whether he was working for or funded by them, and whether there are co-conspirators, and then trying him in our civilian system for his terrorist acts, would have been the best way to first protect our country and then achieve justice.


This oped appeared in the Boston Globe on Wednesday, May 1st, 2013.

Kelly Ayotte, Lindsey Graham and John McCain are Republican US senators, representing New Hampshire, South Carolina, and Arizona, respectively.