- The Washington Times - Monday, April 22, 2013

Despite President Obama’s best efforts to focus the country on top domestic priorities, the Boston bombings have thrust the war on terrorism back to the top of his agenda, and the renewed focus on protecting the homeland will test his national security team and their reliance on the criminal justice system in handling terrorism suspects.

White House spokesman Jay Carney said Monday that the Boston bombing suspect will not be tried as an enemy combatant under the law of war, throwing cold water on a heated partisan debate over how to handle his interrogation and prosecution.

In announcing the administration’s intention, Mr. Carney stressed that the president’s entire national security team agrees that Dzhokhar Tsarnaev, who is in a hospital suffering from a neck wound and was charged Monday with conspiring to use a weapon of mass destruction, should be tried in civilian court under regular criminal statutes rather than under the law of war.

“He will not be treated as an enemy combatant,” Mr. Carney said. “We will prosecute this terrorist through our civilian system of justice.”

Key Republicans, including Sens. Lindsey Graham of South Carolina and John McCain of Arizona, say that decision is a national security mistake. Over the weekend, they called on the administration to deem Mr. Tsarnaev an enemy combatant in order for intelligence officials to question him as long as necessary and without the guidance of an attorney.

Doing otherwise, Mr. Graham and Mr. McCain said, could jeopardize intelligence gathering aimed at thoroughly investigating the two bombing suspects’ ties to extremist groups and preventing another terrorist attack.

“What I’m worried about is what does this individual know about future attacks or terrorist organizations that may be in our midst,” Mr. Graham said Monday at a press conference. “We have a right to gather intelligence.”

The Obama administration has rejected that argument, following a pattern of turning to civilian courts to try terrorism suspects. Since the 9/11 attacks, the federal government has used the civilian court system to convict and incarcerate hundreds of terrorists, Mr. Carney said, including Faisal Shahzad, the so-called Times Square Bomber, and Umar Farouk Abdulmutallab, the so-called underwear bomber. Both were sentenced to life in prison.

“The system has repeatedly proven that it can successfully handle the threat that we continue to face,” he said, noting that it’s illegal for Tsarnaev to be tried in anything but a civilian court because he is a U.S. citizen.

But Mr. Graham and others urging the enemy combatant designation were not arguing for Tsarnaev to be tried in a military court. Because of his U.S. citizenship, under law he can be tried only in a civilian court, and Mr. Graham personally authored that portion of the law. Yet if he were deemed an enemy combatant, he could be detained indefinitely and never face trial a scenario even some Republicans oppose.

Sen. Mike Lee, Utah Republican, agrees with the Obama decision to rely solely on the criminal justice system to prosecute Tsarnaev.

“My understanding is that he is a U.S. citizen, was apprehended on U.S. soil, and I am not aware of any circumstances that I believe would warrant holding him indefinitely without trial,” he said during an appearance Monday at the conservative Heritage Foundation.

Through Monday, the Obama administration was using the public-safety exception to the Miranda law to question Tsarnaev without telling him of his right to an attorney and against self-incrimination.

But that temporary exception, designed to allow for a short, usually 48-hour, period after a suspect is apprehended to search for additional weapons or accomplices, ended Monday when the suspect was read his rights in his hospital room, according to several news reports.

The American Civil Liberties Union and other civil rights organizations had been pressuring the administration to read Tsarnaev his Miranda rights and let him have access to an attorney.

“The ‘public-safety exception’ is precisely that an emergency exception,” said Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “[Tsarnaev], a U.S. citizen, arrested on U.S. soil, has been in custody for nearly three days and the government will have a heavy burden to show that any further questioning without a reading of his Miranda rights is justified.

With Tsarnaev in a hospital recovering from a severe wound, it’s unclear whether any interrogations have taken place and how much law enforcement and intelligence officials have gleaned. The White House declined to publicly discuss details of any interrogations or confirm they took place at all.

The stakes are high for the Obama administration, the Justice Department and the FBI, which is already under scrutiny for failing to closely monitor Tamerlan Tsarnaev, the elder brother who died during a confrontation with police after Russia’s FSB security service warned the U.S. intelligence authorities about his ties to radical Islam in 2011.

Mr. Graham on Monday called for congressional hearings to look into how Tsarnaev slipped through the cracks. He said FBI officials told him Sunday that they followed up on the tip, but did not find any terrorist activity after interviews with him, his family and officials at his school.

The FBI asked Russian officials for more information on Tsarnaev but never received a response, he said. Mr. Graham said that the FBI was unaware that he traveled to Russia for six months in 2011 because his name was misspelled by the airlines.

Seth McLaughlin and Sean Lengell contributed to this report.



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