Two powerful GOP senators are calling on the Obama administration to treat the captured suspect in the Boston Marathon bombings as an “enemy combatant” and deny him some counsel even though he is reportedly an American citizen.
"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," McCain and Graham said late Friday in a joint statement. "The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans."
With Tsarnaev in custody, the lawmakers said, "the last thing we should want is for him to remain silent."
"We need to know about any possible future attacks which could take additional American lives," they said. "The least of our worries is a criminal trial which will likely be held years from now."
The comments came shortly after law enforcement officials detained Tsarneav, 19, in the Watertown area of Boston on Friday night. Tsarneav is suspected of helping to plant the pair of bombs that detonated Monday near the finish line of the Boston Marathon, killing three people, injuring more than 170 and shocking a country that hadn't seen an attack of that scale since 9/11.
Tsarnaev's 26-year-old brother, Tamerlan, was killed during a firefight in the wee hours of Friday morning.
Law enforcement officials say the brothers are ethnic Chechens who came to the United States roughly a decade ago. There were reports Friday that the younger Tsarneav became a U.S. citizen in September 2012.
Regardless his citizenship status, McCain and Graham say Dzhokhar Tsarnaev gave up his rights to a criminal trial when he allegedly participated in the bombings.
"Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel," McCain and Graham said. "Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks."
An official from the Justice Department said Friday night that the government will not read Tsarnaev his Miranda rights, citing a public safety exception.
The comments from two of Capitol Hill's most powerful voices on intelligence matters signal that the Boston attack is sure to re-ignite the contentious debate over how the Obama administration conducts the war on terrorism.
McCain, Graham and other foreign policy hawks have fought to give the military the ability to detain terror suspects with ties to al Qaeda, even if they are captured on U.S. soil or are American citizens.
They have been upset at the Obama administration prosecuting terrorism suspects like the "underwear bomber" in federal court, rather than in a military tribunal as a member of al Qaeda.
The hawks argue that the war on terror makes America part of the battlefield and say that terrorists should not be given more incentive to implement attacks on U.S. soil with due process protections, rather than overseas.
“I think the administration is criminalizing the war,” Graham told reporters on Tuesday.
But Democrats and libertarians warn that not subjecting U.S. citizens to their due process rights — even if they have committed acts of terrorism — would violate the U.S. Constitution.
“If you take them for an event on American territory, yes, I believe it should be a federal court,” Sen. Dianne Feinstein (D-Calif.) told The Hill this week.
“First of all, the federal courts have had the record of success, with probably 400 successful prosecutions," she said. "The military commission has less than a half-dozen successes.”
There was outrage over the 2012 Defense authorization bill out of concerns from civil libertarians that the legislation allowed for the indefinite detention of American citizens.
The issue was also at the heart of the filibuster earlier this year by Sen. Rand Paul (R-Ky.), who wanted assurances from the Obama administration that it would not use drones to attack Americans on U.S. soil.
Graham and McCain blasted Paul for his filibuster. On Friday, Graham told The Washington Post’s Jennifer Rubin that the attack on Monday was “exhibit A” of why the homeland is the battlefield.
“It’s a battlefield because the terrorists think it is,” Graham said.
Sen. Kelly Ayotte (R-N.H.) and Rep. Peter King (R-N.Y.) expressed their support for the Graham-McCain statement Saturday afternoon.