The latest available reports suggest Dzhokhar Tsarnaev is still unable to speak, due to a gunshot wound to the neck, but he’s begun to respond to questions in writing. NBC News reports that the bombing suspect, who remains in serious condition, “was communicating with a special team of federal investigators at Beth Israel Deaconess Hospital.”
And while everyone involved certainly hopes these discussions produce answers, they coincide with a growing political debate, spurred on by conservative Republicans, about Tsarnaev’s legal fate.
A Republican Senate candidate in Massachusetts, for example, wants the government to revoke the suspect’s citizenship status, though there is no law that makes this a legitimate option. Rep. Michael McCaul (R-Texas), the chairman of the House Homeland Security Committee who struggled badly with the details of the case last week, argued without proof that it’s “very probable” Tsarnaev received training from al Qaeda.
And then there’s Sen. Lindsey Graham. The South Carolina Republican, who’s been leading the charge to designate Tsarnaev as an “enemy combatant,” conceded yesterday that federal law does not allow American citizens to be tried in military commissions — sorry, Susan Collins — but he nevertheless believes the mere possibility of an Qaeda connection is enough to push the legal envelope.
“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Mr. Graham said. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”
Mr. Graham said 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war. He also said he believed that federal judges would grant the government that amount of leeway.
It’s worth emphasizing that Graham, a longtime lawyer and a member of the Judge Advocate General’s Corps, appears to be simply be making up legal standards as he goes along.
The Obama administration has already invoked the public-safety exception to the Miranda law, though Graham is arguing this isn’t enough — Tsarnaev should be held, the argument goes, for 30 days, without being made aware of his rights. How did the senator come up with this? He apparently made it up, and hopes courts would go along if the administration agrees to pursue his preferred approach.
What’s more, keep in mind, Graham isn’t saying Tsarnaev’s al Qaeda connections justify such a legally dubious course; he’s saying officials should look for al Qaeda connections for a month, in the hopes that evidence might justify the move retroactively. That Tsarnaev is an American citizen, captured on American soil, apparently doesn’t matter to Graham and his allies. At this point, there’s no reason to believe the Justice Department finds any of this persuasive. Other senators, meanwhile, are sounding more reasonable notes. Senator Carl Levin, a Michigan Democrat who is the chairman of the Senate Armed Services Committee, said in a statement that the laws of war did not apply to Mr. Tsarnaev and that there was so far no evidence that he was “part of any organized group, let alone Al Qaeda, the Taliban or one of their affiliates — the only organizations whose members are subject” to detention as a part of war. “In the absence of such evidence, I know of no legal basis for his detention as an enemy combatant,” Mr. Levin said. “To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.”
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