The administra-tion has indicated it intends to move quickly to build a criminal case against Dzhokhar Tsarnaev. But investigators plan to first question him without informing him of his legal rights to remain silent and have an attorney present.
Several Republican lawmakers on Saturday criticized the administration’s approach because they said it would afford Tsarnaev more rights than he deserves. The federal public defender for Massachusetts called for the quick appointment of a lawyer to represent Tsarnaev because of serious issues involving his interrogation in the absence of a lawyer.
Prosecution of Tsarnaev in federal court would seem a natural course for an administration that previously won a life sentence against Umar Farouk Abdulmutallab of Nigeria for trying to blow up a packed jetliner using a bomb sewn into his underwear on Christmas Day 2009.
The administration also will put Osama bin Laden’s son-in-law on trial in January on charges that he conspired to kill Americans in his role as al-Qaida’s chief spokesman.
As a U.S. citizen, Tsarnaev could not be tried by a military commission under current law; the only option for prosecuting an American is in civilian courts.
A federal official with knowledge of the case said Tsarnaev was naturalized as a U.S. citizen in September 2012. The official was not authorized to speak publicly about details of the case and requested anonymity.
Tsarnaev was under armed guard at a Boston hospital and was reported in serious condition and unable to be interrogated Saturday.
He has yet to be charged but prosecutors appear to have no shortage of federal laws at their disposal.
The most serious charge would be the use of a weapon of mass destruction to kill people, which carries a possible death sentence.
Massachusetts does not have the death penalty, and it remains to be seen whether the administration would try to persuade a jury to sentence Tsarnaev to death. The state could try to bring charges against him, including for the death of Sean Collier, the Massachusetts Institute of Technology police officer who authorities say was killed by Tsarnaev and his brother, Tamerlan.
An early question that arose after Tsarnaev’s capture on Friday was how to conduct his initial interrogation.
The administration said it would not immediately inform him of legal protections known as the Miranda rights. Instead, prosecutors planned to invoke a public safety exception created by the need to protect police and the public from immediate danger.
The American Civil Liberties Union’s executive director, Anthony Romero, said the exception applies only when there’s a continued threat to public safety, like whether there is imminent danger from other bombs, and is “not an open-ended exception” to the Miranda rule.
The federal public defender for Massachusetts, Miriam Conrad, said her office expects to represent Tsarnaev after he is charged and that he needs a lawyer appointed as soon as possible because there are “serious issues regarding possible interrogation.”
But several congressional Republicans said Tsarnaev’s rights should be even more restricted than the administration intends.
“I am disappointed that it appears this administration is once again relying on Miranda’s public safety exception to gather intelligence which only allows at best a 48-hour waiting period that may expire since the suspect has been critically wounded,” Sen. Saxby Chambliss of Georgia, the top Republican on the Senate Intelligence Committee, said in a statement hours after Tsarnaev was captured.
Chambliss’ concerns were echoed by Sens. John McCain, R-Ariz., Kelly Ayotte, R-N.H., and Lindsey Graham, R-S.C., as well as Rep. Peter King, R-N.Y.
“A decision to not read Miranda rights to the suspect was sound and in our national security interests,” the four said in a statement. “However, we have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect.”
But Rep. Adam Schiff, D-Calif., a former federal prosecutor and member of the House Intelligence Committee, said the administration should ignore “hasty calls to treat the suspect as an enemy combatant.”
“This is not a foreign national caught on an enemy battlefield, but an American citizen arrested on American soil,” Schiff said. “The Justice Department has demonstrated a far greater ability to successfully prosecute suspected terrorists in federal courts than the military commissions have thus far been able to show. Nothing must be done to compromise the public safety, the ability of prosecutors to seek justice for the victims or our constitutional principles.”
While the Republicans asserted that Tsarnaev can be held as an enemy combatant, the Supreme Court has never resolved whether citizens or foreign nationals arrested on U.S. soil can be held by the military, as opposed to civilian authorities.
The court twice was prepared to take up that question in recent years, once while George W. Bush was president and once since Barack Obama became took office. Both times, the administration moved the suspected terrorists, U.S. citizen Jose Padilla and graduate student Ali al-Marri, from a military brig to civilian confinement to head off the high court case.