Some Republican members of Congress are calling on the executive branch to treat Dzhokhar Tsarnaev, one of the two brothers suspected of being responsible for last week's terrorist attack in Boston, as an enemy combatant, but not to try him in a military court.
As an American citizen, Tsarnaev cannot be tried in a military commission, Sen. Lindsey Graham (R-S.C.) explained Sunday on CNN's "State of the Union," but he should be considered an enemy combatant for information gathering purposes. Graham authored the Military Commissions Act of 2009, which established the procedures for military tribunals, and has 30 years of experience as a lawyer in military courts.
Graham delivered a joint statement Saturday with Sens. John McCain (R-Ariz.) and Kelly Ayotte (R-N.H.) and Rep. Peter King (R-N.Y.) calling on the Obama administration to designate Tsarnaev an enemy combatant.
The Justice Department decided to interrogate Tsarnaev before reading him his Miranda rights and allowing him to speak to a lawyer. The Justice Department believes it has the right to do this under what is called the "public safety exception." (Though, the ACLU has questioned that reasoning and the matter may be decided by a future court case.)
Tsarnaev can be treated as an enemy combatant for the purposes of gathering intelligence, Graham said, under "law of war questioning," even if he is tried in a civilian court.
"When the public safety exception expires, and it will here soon, this man, in my view, should be designated a potential enemy combatant and we should be allowed to question him for intelligence gathering purposes to find out about future attacks and terrorist organizations that may exist and he has knowledge of," Graham said.
The evidence gathered through such an interrogation could not be used against Tsarnaev in his trial, Graham explained, but would be used "to protect us as a nation."
"Any time we question him about his guilt or innocence, he's entitled to his Miranda rights and a lawyer, but we have the right under our law ... to gather intelligence from enemy combatants, and a citizen can be an enemy combatant," Graham added.
On "Fox News Sunday," Sen. Dianne Feinstein (D-Calif.) argued there is no need to designate Tsarnaev an enemy combatant because officials will be able to get all the information they need under the public safety exception.
"I really regret all of this discussion, creating a conflict that need not be there," Feinstein said. "The administration is ready for this."
Rep. King, who was on the same show, countered that the public safety exception only lasts for about 48 hours, which would not be enough time to gather all the information that might be obtained.
"This is a unique opportunity to go into a treasure trove of intelligence. Only he has it," King said.