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.