In a Friday afternoon interview with Right Turn, Sen. Lindsey Graham (R-S.C.) stirred the pot by suggesting that the Boston Marathon bombing incident proved the assertion that the United States is the battlefield in the war against jihadists. He recalled that during Sen. Rand Paul’s filibuster on drones, “I went to the floor for only one objection. He said ‘American is not the battlefield..’” Graham said he had brought with him a poster of the twin towers. Graham recalled, “I said, ‘This is the first battle.’”
Before the second bombing suspect was apprehended Friday night, Graham explained his reasoning during that filibuster regarding use of drones at home. “I said, ‘They’ll be more cities.’” At the time be belittled Rand Paul’s concern about Americans getting zapped by drones. He recalled his words then about Americans killed on U.S. soil, “Americans killed by drones. Zero. Americans killed by al-Qaeda. 2,995 [on 9-11-2001].”
While the police were still searching for the second Boston bomber, Graham riled civil libertarians again in a series of tweets: “If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes. . . . If the Boston suspect has ties to overseas terror organizations he could be treasure trove of information. . . . The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”
In fact, the Boston bomber was apprehended and the administration, although unable to immediately interrogate him due to injuries, invoked the “public safety” exception to Miranda that would allow the authorities to interrogate him to determine any ongoing peril from the bombers activities (e.g. other suspects at large, additional bombs).
On Saturday, along with Republican Sens. John McCain (Ariz.) and Kelly Ayotte (N.H.) and Rep. Peter King (N.Y.), Graham released a statement, which read in part:
It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.
The suspect, based upon his actions, clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent.
We are encouraged our High value detainee interrogation team (HIG) is now involved and working to gather intelligence about how these terrible acts were committed and possibility of future attacks.
A decision to not read Miranda rights to the suspect was sound and in our national security interests.
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.
We should be focused on gathering intelligence from this suspect right now that can help our nation understand how this attack occurred and what may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete.
The public safety exception is a domestic criminal law doctrine that allows questioning of a criminal suspect without Miranda warnings for a limited time and purpose.
We hope the Obama Administration will consider the enemy combatant option because it is allowed by national security statutes and U.S. Supreme Court decisions.
This, unsurprisingly, generated more outrage from those who have opposed utilizing the law of war rather than criminal war to fight jihadists. Graham harkens back to the 2011 Defense Authorization Act that allows permanent detention of enemy combatants:
Graham’s words at the time of the defense authorization were eerily predictive. (“Don’t you think most Americans would be offended, that if after the person was captured, who went on a rampage to kill people in America, that you couldn’t question them about is there someone else coming? You’d have to say you have the right to remain silent, here’s your lawyer. . . . If we take that option off the table, we would have diminished our national security and overturn what every other time of war has been about.”
Back in 2011 he asserted, “When you join the enemy, you have not committed a crime; you have turned on the rest of us. And you should accept the consequences with being at war with America.”
However, in the Boston case even strong critics of the Obama administration efforts to criminalize the war against al-Qaeda say Graham is on shaky ground. It is true in the Padilla case that the court left open the possibility that an American citizen could be detained as an enemy combatant. But — and here is the catch — in the original Authorization for Use of Military Force (AUMF) following Sept. 11 and in the subsequent Defense Authorization Act, the person subject to designation as an enemy combatant has to be in the category of people Congress has authorized combat against, namely al-Qaeda and its affiliates. As of this writing we have no evidence that is the case. At worst , right now, Tamerlan Tsarnaev and Dzhokhar Tsarnaev seem to be inspired by jihadist ideology. That is almost certainly not sufficient to take the brothers out of the criminal justice system.
Theoretically, during initial questioning of Dzhokhar the high value detainee interrogation group could explore whether there are facts to suggest he is more than a lone, disaffected and radicalized American. Nevertheless, as former federal prosecutor Andy McCarthy told me via e-mail, “All of this is academic because Obama is committed to civilian prosecution.”
In short, Graham correctly diagnosed the problem: American citizens radicalized by jihadist ideology. However, it does not follow that we can under present law do what Graham thinks is advisable. And that in turn begs the question as to whether we should. In the case of the Boston bombing suspects, the evidence is so replete that the information gathered in questioning Dzhokhar is unlikely to be needed to be used against him in his prosecution. Authorities, for example, could decide to question him without Mirandizing him and then use that information not for prosecution but for national security investigation and intelligence with regard to foreign counterparts, if any, and similar individuals who pose a risk.
Graham acts as a lightning rod for civil libertarians because he reminds us of the extent to which our criminal justice system is inadequate to deal with jihadist terror. But that still leaves it up most likely to Congress to update AUMF and develop rules of the road for dealing with terrorists apprehended in the U.S. Graham is however a good reminder that the advocates of the other extreme — barring drones, preventing detention of non-U.S. citizen enemy combatants, etc. — live in a fantasyland in which the government is our biggest threat. It’s not.
Meanwhile, in news that might be on the front page if not for the extraordinary Boston story, Graham on Friday related that the Senate Foreign Relations Committee unanimously passed his Resolution 65 that “urges that, if the Government of Israel is compelled to take military action in self-defense, the United States Government should stand with Israel and provide diplomatic, military, and economic support to the Government of Israel in its defense of its territory, people, and existence.” Graham told me that “containment is off the table.” But when the president reiterated that we “have Israel’s back,” it was needed to spell out what that means. Graham’s resolution even had the support of Rand Paul, although his staff is quick to point out that at his insistence the following language was added: “Nothing in this resolution shall be construed as an authorization for the use of force or a declaration of war.” I have no doubt that if by summer sanctions and negotiations have not resulted in disabling Iran’s nuclear weapons Graham will be among those urging that Congress to go ahead and authorize force, in a final attempt to give the threat of military option some teeth. And that will once again roil the national security debate.