White House says Tsarnaev will not be held as enemy combatant, over GOP dissent

April 22, 2013

Updated at 6:50 p.m.

White House press secretary Jay Carney said Monday that Dzhokhar Tsarnaev will not be classified as an “enemy combatant,” despite pressure from some congressional Republicans to do so. Speaking during his daily press briefing, his first since the Boston bombing, Carney said Tsarnaev will be tried in civilian court.

“We will prosecute this terrorist through our civilian system of justice," Carney said. "Under U.S. law, United States citizens cannot be tried in military commissions.”

Later, federal authorities said Tsarnaev would be charged with using a weapon of mass destruction.

Despite the enemy combatant push from some leading Republican foreign policy hawks, Democrats and at least one leading voice of the GOP's libertarian wing had resisted the "enemy combatant" argument.

Rep. Justin Amash (R-Mich.), who has often clashed with more hawkish GOP lawmakers, on Saturday responded directly to Sen. Lindsey Graham's (R-S.C.) push for enemy combatant status for Dzhokhar Tsarnaev:

 

Sen. Rand Paul (R-Ky.) told Fox Business Network Monday evening that Tsarnaev could be tried through the regular judicial system.

"I see no reason why our Constitution isn’t strong enough to convict this young man, with a jury trial, with The Bill of Rights," he said. "We do it to horrible people all the time, rapists and murders -- they get lawyers, they get trails with juries and we seem to do a pretty good job of justice, so I think we can do it through our court system.”

Tsarnaev was not read Miranda rights when he was apprehended, but the stated justification is the so-called Public Safety Exception, which allows law enforcement to delay Mirandizing a suspect until it can be determined whether he or she knows of further threats to public safety. Tsarnaev is communicating in a limited fashion with investigators, but remains in serious condition and has a gunshot wound to the throat, authorities said.

Given Tsarnaev was a U.S. citizen allegedly engaged in terrorism on home soil, there continued to be disagreement about whether he can be held as an enemy combatant — a term generally used for someone acting on behalf of a state with which the United States is at war.

Sen. Dan Coats (R-Ind.) said Sunday that he agreed with Graham, Rep. Peter King (R-N.Y.), and Sens. John McCain (R-Ariz.) and Kelly Ayotte (R-N.H.) that Tsarnaev shouldn't be read his Miranda rights — at least for now.

"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," Coats said on ABC's "This Week." Coats added: "I think we ought to keep that option open until we find out whether or not there was a connection to terrorist organizations."

Sen. John Cornyn (R-Tex.) re-tweeted Graham's call for enemy combatant status, and Sen. Saxby Chambliss (R-Ga.) issued a statement urging that it be used for the time being.

"I urge this administration to do the right thing and deem this suspect as an enemy combatant so that we get as much intelligence as legally possible before the suspect is mirandized," Chambliss said in a statement Saturday.

But Rep. Bennie Thompson (D-Miss.), the ranking Democrat on the House homeland security committee, said on "This Week" that while he agrees that Tsarnaev shouldn't have been Mirandized when apprehended, he also said he should not be held as an enemy combatant.

"We still, I believe, have enough evidence," Thompson said. "I don't think we should solely rely on Mirandizing this candidate. He is, clearly, one of those individuals we have. What we need to do is collect evidence, turn it over to the U.S. attorney, prosecute him to the fullest extent of the" law.

Asked whether the man should be held as an enemy combatant, though, Thompson said "no."

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) agreed, saying Sunday that Tsarnaev was not eligible for enemy combatant status.

“I do not believe under the military commission law that he is eligible for that," she said on "Fox News Sunday." "It would be unconstitutional to do that."

Some key members of the GOP's tea party and libertarian wings have yet to weigh in on the matter, including Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Tex.).

A May 2010 Fox News poll found that 51 percent of Americans supported Mirandizing terrorism suspects, while 43 percent supported treating them differently than other suspected criminals. A November 2010 Washington Post poll showed 46 percent thought terrorism suspects should be tried in military tribunals, while 41 percent thought they should be tried in federal courts. Neither poll, though, asked how U.S. citizens suspected of terrorism should be treated.

For more on the White House's announcement, see our main story.

Aaron Blake covers national politics and writes regularly for The Fix, the Post’s top political blog.
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