When bombing suspect Dzhokhar Tsarnaev is able to communicate, federal officials will question him closely about any possible co-conspirators and additional plots. No one can be certain that all immediate threats have passed. That’s why there’s a recognized exception to the so-called Miranda rule, informing suspects of their rights to a lawyer and to remain silent, for ongoing threats to national security. And as soon as the FBI has finished questioning him, he should be given his Miranda warning, and the legal process should go forward.
But that’s not enough for a group of Republican senators led by John McCain and Lindsey Graham, and including New Hampshire’s Kelly Ayotte, who immediately began clamoring Friday for Tsarnaev to be transferred to military custody rather than face justice in federal court. Thankfully, the Obama administration ignored them, and prosecutors formally charged Tsarnaev on Monday.
Tsarnaev is a US citizen. Along with his older brother, who was killed in a shootout with police early Friday, Tsarnaev is believed to have killed three people with bombs at the Marathon finish line and then murdered a police officer in Cambridge on Thursday night. The allegations are heinous, but there is no evidence that Tsarnaev, 19, was part of Al Qaeda or an affiliated group. He was captured inside a boat in Watertown, not on a battlefield. He no more meets the legal definition of “enemy combatant” than James Holmes, the man awaiting trial for allegedly killing 12 in a mass shooting in Aurora, Colo., last year. Not only is a trial for Tsarnaev a legal no-brainer, it’s the preferable option: Survivors of the bombing and families of the dead deserve nothing less than a full trial in open court.
In calling for Tsarnaev’s designation as an enemy combatant, McCain and Graham wrongly imply that federal courts can’t handle the case. They’re recycling the claims offered during the Bush years, when US citizens Jose Padilla and Yaser Hamdi were held in military detention instead of going to trial. Both cases were closer calls than the Tsarnaev prosecution; Hamdi was captured overseas, and Padilla was clearly connected to a foreign terrorist network. Still, the detention without charge of American citizens in military brigs is increasingly viewed as one of the most regrettable excesses of Bush’s war on terror, a symbol of panicked thinking after 9/11.
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So why do the senators — whose call was echoed by Massachusetts senatorial candidate Gabriel Gomez — persist? Some candidates seem to feel that asserting a manly contempt for defendants’ rights is a winning political stance. But it’s also hard to avoid the impression that McCain, Graham, and some other hawks are rehashing the battles of the Bush era, in search of vindication. During the recent confirmation hearings for Defense Secretary Chuck Hagel, McCain and Graham seemed most concerned about preventing a one-time Iraq war critic from heading the Pentagon, as if elevating him to the job would discredit a war that both senators vigorously supported.
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Despite all the grandstanding in Washington, the federal court in Boston and Massachusetts state courts, which might handle the murder of MIT police officer Sean Collier, are fully capable of bringing Tsarnaev to justice. The calm reaction in Boston as the search for Tsarnaev shut down the city was a heartening display of how much the nation has matured since 9/11. His prosecution should be, too.
An earlier version of this editorial said that any comments Tsarnaev made to police officers before they read him a Miranda warning could not be used against him in court. The Supreme Court has ruled that such comments can be used against a defendant under limited circumstances.