'Premature to Declare We Will Not Treat Tsarnaev as an Enemy Combatant'
"A first-year law student could prosecute this case. What I'm worried about is what does this individual know about future attacks or terrorist organizations that may be in our midst? We have the right to gather intelligence. Under the criminal system, you should not question someone without their lawyer present," Graham continued. "Under the Law of Armed Conflict, when you're trying to gather intelligence about future attacks against your nation, there is no requirement for a lawyer. It would disturb me greatly if this administration is relying exclusively on the criminal justice system to gather intelligence."
In a Hill battle of the lawyers, Harvard law school grad Rep. Adam Schiff (D-Calif.) told MSNBC he doesn't think there's a constitutional basis for treating Tsarnaev as an enemy combatant.
"I understand that Senator Graham would like to prolong the interview and we all want to get as much information as we can, but there are real constitutional limits to what we can do and those limits, I think, apply in a situation of an American arrested for committing a heinous act like this on American soil," Schiff said.
But he acknowledged that intelligence is needed out of this case.
"How did this plot come about? Was there foreign direction? Are there foreign players that are still involved in this? How did they get the materials? How did they organize this? Was this self-directed by these two, or was there foreign direction?" Schiff said. "…One of the key questions for the intelligence community is, what is the foreign connection here? What happened on that trip to Dagestan? Were things that we missed?"
News outlets reported today that officials said Tsarnaev, unable to speak yet writing answers to questions from his hospital bed, had confessed to being motivated by Islam but denied broader terror links.
House Armed Services Committee ranking member Adam Smith (D-Wash.) said he's already satisfied that the criminal court system can reap whatever information Tsarnaev has to offer.
"At this point in time, there is no evidence that the suspect was connected with al Qaeda or its affiliates, while there is an abundance of evidence that suggests he committed both state and federal crimes. There is no basis for him to be held as an enemy combatant at this time," Smith said.
"Our civilian law enforcement and courts have a proven track record of success in crimes related to terrorism, and I have full confidence in their abilities. It is also critical that the suspect be interrogated to gain information and intelligence," he added. "We must ensure that we do all we can to understand the scope of the attacks and prevent a similar attack from happening again.”
Attorney General Eric Holder today announced that Tsarnaev, 19, was charged with using a weapon of mass destruction against persons and property and one count of malicious destruction of property by means of an explosive device resulting in death, charges that carries the possibility of the death penalty.
"We will hold those who are responsible for these heinous acts accountable to the fullest extent of the law," Holder said.
As Tsarnaev faces his first hearing next month, the Hill faces an untold number of congressional hearings on the questions to arise from the Boston bombing.
"It is imperative that we protect the homeland. The desire of this enemy is to strike us in our own back yard. I do not wish America to be the battlefield, but it is. It is the choosing of our enemies to make our homeland the battlefield," Graham said. "All I ask is that within our values and within our legal system we retain the right to defend ourselves."