Graham’s Enemy Combatant Crusade Continues

Posted April 22, 2013 at 3:40pm

Sen. Lindsey Graham continued his push to hold the surviving Boston Marathon bombing suspect as an enemy combatant Monday afternoon, even after the Justice Department unveiled federal criminal charges.

The suspect “will not be treated as an enemy combatant,” according to White House Press Secretary Jay Carney.

The latest campaign by the South Carolina Republican to have an individual associated with terrorism held as an enemy combatant began on Twitter the afternoon of April 19, in the midst of the massive manhunt for Dzhokhar A. Tsarnaev.

Since then, Graham has led an effort with several other Republicans to push against offering Miranda rights and a guarantee of counsel to Tsarnaev, who reportedly became an American citizen last year.

“We should be focused on gathering intelligence from this suspect right now that can help our nation understand how this attack occurred and what may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete,” Graham said in an April 20 joint statement with his GOP kindred spirits Kelly Ayotte of New Hampshire and John McCain of Arizona, with a guest appearance by Rep. Peter T. King, R-N.Y.

Graham has made repeated TV and radio appearances since April 19 to get attention for his point of view, although the Justice Department is clearly taking a different course, announcing that it had filed criminal charges Monday in U.S. District Court in Boston.

“We hope that this prosecution will bring some small measure of comfort both to the public at large and to the victims and their families that justice will be served,” U.S. Attorney Carmen Ortiz said in a statement. “While we will not be able to comment on any possible communications between the suspect and law enforcement at this time, as a general rule, the government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody.”

Graham said that he was well aware that information obtained during an interrogation outside the traditional criminal justice process would not permit statements to be admissible in a civilian court, but he said that the evidence in place is so substantial that a “first year law student” could secure a conviction in this case.

“It is imperative that we have time with this suspect, not to prove his guilt or innocence — there’s ample evidence of that — but to gather intelligence as to what he may know about terrorist organizations” or other individuals who may be plotting attacks on the United States, Graham told reporters.

“The evidence right now to me is ample and overwhelming to suggest that the attacks in Boston were inspired by radical jihadists and their ideology. I do not want to jeopardize any criminal defendants’ rights to a fair trial. The public defenders who will be assigned to this case should vigorously defend this young man — by doing so, you make us all safe,” Graham said.

He continued, “I asked questions that apply to what happened today. I have seen this coming for a very long time. I’ve taken the floor on multiple occasions … to prepare our nation for this day. This day has finally arrived,” Graham said.

Graham’s office provided documents to demonstrate his interest in the subject, including an April 11 letter from the Department of Defense in response to questions from Graham about the use of enemy combatant designations.

Two response from the department’s acting general counsel are particularly on point about the possibility of using an enemy combatant designation on domestic soil. Acting General Counsel Robert S. Taylor says a U.S. citizen can be deemed an enemy combatant and, in fact, the existing authorization for use of military force could apply within the boundaries of the United States with respect to “the conflict against al-Qaeda, the Taliban and associated forces.”

During a lengthy conversation with reporters assembled Monday afternoon, Graham also opened the door to the need for new legislation to provide the FBI with new tools to keep track of individuals flagged by foreign governments, as was the case with older brother Tamerlan Tsarnaev. (He was killed in a shootout with police early on April 19.) Graham said the FBI told him the department did not hear back from the Russian government when agents tried to ask follow-up questions.

“I don’t want to live in a police state — no one does,” Graham said, while saying that the FBI should have the tools to track the websites, YouTube videos and other interactions of such individuals, while not going so far as to create problems for others, such as journalists, who may watch jihadi videos as part of the course of work.

Senate Armed Services Chairman Carl Levin has been quick to criticize Graham’s campaign.

“I am not aware of any evidence so far that the Boston suspect is 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 under the Authorization for Use of Military Force, as it has been consistently interpreted by all three branches of our government,” the Michigan Democrat said in a weekend statement.

“In the absence of such evidence I know of no legal basis for his detention as an enemy combatant,” Levin added. “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.”

Steven T. Dennis contributed to this report.