Two prominent Senate Republicans on Wednesday called for the suspect in the New York City terror attack to be held in military custody as an enemy combatant.
The suspect, identified by officials as Sayfullo Saipov, is a lawful permanent U.S. resident.
Both Senate Armed Services Committee Chairman John McCainJohn Sidney McCainKelly takes under-the-radar approach in Arizona Senate race Voting rights, Trump's Big Lie, and Republicans' problem with minorities Sinema, Manchin curb Biden's agenda MORE (R-Ariz.) and his longtime friend and ally Sen. Lindsey GrahamLindsey Olin GrahamKyrsten Sinema's courage, Washington hypocrisy and the politics of rage Hillicon Valley: Amazon's Alabama union fight — take two McConnell will run for another term as leader despite Trump's attacks MORE (R-S.C.) characterized the attack as an act of war being waged by Islamic extremists.
“There’s ample evidence to suggest that these attacks were motivated by radical Islamic thought, that he killed in the name of radical Islam and that he is expressing his allegiance to ISIS, that he is acting as a soldier of the caliphate — and we should treat him as a soldier of the caliphate,” Graham said during a press conference Wednesday morning.
If he is held in military custody as an enemy combatant, Saipov would not be entitled to a lawyer nor would he be read his Miranda rights advising him of his rights under U.S. law.
The Supreme Court has previously ruled that citizenship does not prevent an individual from being held in military detention — as long as the government can prove that person is a fighter for an enemy force with whom the U.S. is in a state of armed conflict.
There is some legal debate about whether the current war authorization applies to the Islamic State in Iraq and Syria — and if it doesn’t, whether that would rule out designating Saipov as an enemy combatant.
He almost certainly will not be prosecuted by a Guantanamo military commission, which is restricted to foreign combatants.
The Obama administration pioneered an approach to cases where the terror suspect is a U.S. citizen or a permanent resident known as the “hybrid model.” The individual would remain in military custody, subject to interrogation, for a period of days or weeks. Then an FBI “clean team” would come in, read the individual his Miranda rights, and kickstart a criminal prosecution.
Graham called for an overhaul of that practice under the new administration.
“You’ll never convince me that the best way to gather intelligence in this war, which is now in our backyard, is to read somebody their Miranda rights telling them they have the right to remain silent,” Graham said.
“I am 100 percent convinced if you criminalize this war, in the future you’re going to make America less safe.”
The Trump administration appears to have given Congress few signals how it will handle Saipov.
“This is why I’m here. I don’t know,” Graham said Wednesday.
McCain in a statement called on the White House to notify Congress how it plans to proceed with his interrogation and trial “as soon as possible.”
Graham spoke to President Trump last night to urge him to hold Saipov as an enemy combatant, he said, and “I think he’s inclined to be aggressive.”
Trump on Wednesday said he would “certainly consider” sending the suspect to the U.S. military prison in Guantánamo Bay, Cuba.
“I would certainly consider that, yes,” Trump said when asked by a reporter at the White House. "Send him to Gitmo.”