Within hours of authorities apprehending a 19-year-old Boston college student Friday as a suspected terrorist, President Obama used the words “justice” and “intelligence” to describe the government’s pursuit of facts and its responsibility to protect the public.
On Monday, the government’s written complaint against the hospitalized Dzhokhar Tsarnaev outlined selected facts and directed the terror case into federal court, following precedent seen in both the Obama and Bush administrations. The Justice Department’s complaint against the alleged backpack bomber opened the door to the death penalty, a punishment unavailable under Massachusetts law.
In a hearing held in the accused’s hospital room at Boston’s Beth Israel Deaconess Medical Center, prosecutors charged Tsarnaev with using and conspiring to use a weapon of mass destruction, resulting in death, and malicious destruction of property by means of an explosive device, resulting in death. The complaint summarized the video, photographic and witness evidence used to support the government’s charges to date. Tsarnaev, a student without an income, is expected to be represented by a public defender after telling the government with the whispered word “no” that he cannot afford his own attorney.
Obama, who has remained in close consultation with the FBI, Justice and intelligence agencies during the weeklong investigation, landed squarely in a suddenly revived debate.
On Capitol Hill, Republican Sen. Lindsey Graham returned to an argument among lawmakers, the courts and voters after 9/11 about whether the Bush administration’s “war on terror” defied the Constitution, the rule of law and American values by using enhanced interrogation techniques - which critics described as torture - against suspected terrorists.
Disagreements with conservatives about intelligence and justice helped scuttle Obama’s 2008 campaign boast that he would shutter the prison at Guantanamo Bay. And the conflict has been woven into progressives’ unease that Obama has favored unmanned drones to kill human targets identified as terror suspects beyond U.S. borders, rather than try to capture and question them.
The arguments on Monday sounded like this: If those who plot to terrorize the public on U.S. soil are adjudicated in civilian, Article III courts, does the law treat them as criminals or as war enemies? And what difference does it make?
A related debate enveloped the administration’s use of the so-called “public safety exception” (used to try to thwart possible new plots or terror conspiracies) by questioning Tsarnaev right away, without trampling on his rights against self-incrimination, or compromising the government’s case based on information he volunteered after being apprehended.
Graham said the president and the Justice Department should treat the accused bomber as an enemy combatant so the government could quickly unearth potentially important intelligence in what the senator called an ongoing war against radicalized Islam.
“The ability to have access to this suspect without a lawyer present, to gather intelligence about a future attack, is absolutely essential to our national security,” the South Carolina senator said during a news conference he organized on Capitol Hill. “If … the evidence suggests, after a reasonable opportunity to make this decision, this suspect does not fall into the statutory definition of an enemy combatant, I will accept that result. I think to rule that decision out now is premature and is unfair to those who are trying to protect us.”
The White House insisted Monday that the government would not bring Tsarnaev, a U.S. citizen since 2012, into a military commission because it would violate the law. He will not be adjudicated as 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 non-citizens for acts of terrorism committed inside the United States and around the world,” spokesman Jay Carney said, reading from notes.
The White House examples: Faisal Shahzad, the Times Square bomber, sentenced to life in prison; Nigerian Umar Farouk Abdulmutallab, the so-called Christmas Day underwear bomber, sentenced to life in prison; Mohammed Abdullah Warsame, a Somali national with Canadian citizenship and married to an American, who was interrogated on a U.S. Navy ship for two months before prosecutors read him his Miranda rights and moved him to New York. He entered a plea of guilty in 2011 on charges of providing material support to terrorist groups, and the administration and human rights groups have pointed to Warsame’s case as a template for how justice and intelligence can mesh in terror prosecutions. Warsame provided “valuable intelligence,” Carney said Monday.
The administration’s reliance on federal civilian courts to bring Tsarnaev to justice “is absolutely the right way to go and the appropriate way to go,” Carney added.
Graham, unconvinced, said Congress may see things differently, and should weigh in.
“I hope that the Congress will look at this case and look at our laws and come to the conclusion that I have come to,” he told reporters. “We're at war. We're going to be at war for a very long time. And we have to have the tools to defend ourselves within our values.”