WASHINGTON — A legal and political fight has begun over whether the wounded American teenager suspected of being one of two Boston Marathon bombers should be treated as an enemy combatant, instead of as a conventional criminal.
With charges imminent, Republican lawmakers want the Justice Department to designate Dzhokhar Tsarnaev, 19, as an enemy combatant, while senior Democrats say that is unwarranted.
The outcome will determine how Tsarnaev is treated, and, in particular, how he is questioned. Though the naturalized U.S. citizen appears ineligible for the kind of military commissions established for foreign terrorists, designation as an enemy combatant could subject him to extended, isolated interrogation.
"We should be allowed to question him for intelligence-gathering purposes to find out about future attacks and terrorist organizations that may exist that he has knowledge of," Republican Sen. Lindsey Graham of South Carolina said Sunday on CNN's State of the Union." "That evidence cannot be used against him in trial. That evidence is used to protect us as a nation."
Politically, too, the Justice Department's decision will have consequences. Congressional Republicans are leading the call for Tsarnaev to be designated an enemy combatant, and they appear ready to use the issue against the Obama administration if they get a chance.
"I very much regret the fact that there are those that want to precipitate a debate over whether he's an enemy combatant or whether he is a terrorist, a murderer, et cetera," Democratic Sen. Dianne Feinstein of California, chairman of the Senate Permanent Select Committee on Intelligence, said on "Fox News Sunday."
Even if he's not designated an enemy combatant — or "unlawful" combatant, in the term preferred by the Obama administration — Tsarnaev can be questioned for a time without an attorney present under a public safety exception to the standard Miranda rights. The U.S. Attorney for Massachusetts, Carmen Ortiz, said Friday that "the government has that opportunity now" to invoke the exception.
For now, Tsarnaev is talking to no one. Sedated and held under close guard at Boston's Beth Israel Deaconess Medical Center since his capture Friday, Dzhokhar is intubated and in serious condition, according to officials. Republican Sen. Dan Coats of Indiana, a member of the Senate Intelligence Committee, said Sunday on ABC's "This Week" that Tsarnaev was shot in the throat, rendering him speechless for at least the time being.
"It's questionable when and whether he'll be able to talk again," Coats said.
Tsarnaev's brother and suspected bombing accomplice, 26-year-old Tamerlan Tsarnaev, died early Friday morning after a car chase and confrontation with police that ended with about 200 shots being fired. Republican and Democratic lawmakers agreed Sunday that they need more information about the FBI's questioning of Tamerlan Tsarnaev in 2011 at the request of the Russian government.
Dzhokhar managed to flee the Friday night shootout, hitting his brother with a stolen Mercedes SUV. Ditching the car and escaping on foot, Dzhokhar hid out in a boat parked behind a house in suburban Watertown, Mass., until being discovered Friday night.
Both state and federal charges could be brought against the surviving Tsarnaev for the bombing last Monday that killed three and injured more than 180. More than 50 people remained hospitalized Sunday, some of them with amputated limbs, the hospitals said.