# Dzhokhar Tsarnaev. Should he be treated as an enemy combatant or not? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [April 21, 2013, 11:35pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349 "2013-04-21T23:35:30Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Merneith](https://avatars.discourse-cdn.com/v4/letter/m/57b2e6/32.png) [@Merneith](https://boards.straightdope.com/u/Merneith)\ **Post date:** [April 22, 2013, 2:56pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/41 "2013-04-22T14:56:48Z")
Orin Kerr at the Volokh Conspiracy posted an article yesterday with a discussion about the limits and legalities of questioning suspects outside of Miranda. According to Kerr, Miranda only comes into play if you want to admit the suspect’s statement in court. If you’re not planning to do that because you’ve got other evidence, it doesn’t matter. Also, there’s a public safety exception to the rule. You don’t have to read a suspect his rights before asking him, “are there any more bombs out there?” I don’t know enough personally to back up this argument. I’m just mentioning it because I thought it was interesting. > **[Tsarnaev and Miranda Rights - The Volokh Conspiracy](https://volokh.com/2013/04/20/tsarnaev-and-miranda-rights/)** > > Law enforcement has successfully captured Dzhokar Tsarnaev, and DOJ has announced that Tsarnaev is being interrogated without first being read his Miranda rights because the DOJ thinks that the public safety exception to Miranda applies. Back in... > [@](#): > > The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). As for the poll - I voted try him as a US citizen. It’s a national disgrace that we even tried to create this extra-legal category in the first place. ---
**Author:** ![MilTan](https://avatars.discourse-cdn.com/v4/letter/m/71e660/32.png) [@MilTan](https://boards.straightdope.com/u/MilTan)\ **Post date:** [April 22, 2013, 3:01pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/42 "2013-04-22T15:01:20Z")
> [@Merneith](#): > > Also, there’s a public safety exception to the rule. You don’t have to read a suspect his rights before asking him, “are there any more bombs out there?” Just to clarify, as I said above, the public safety exception isn’t what _allows_ you to ask that question in the first place. The exception just means that under certain circumstances, you can use the suspect’s response to that question in court. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 22, 2013, 3:12pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/43 "2013-04-22T15:12:08Z")
> [@MilTan](#): > > Just to clarify, as I said above, the public safety exception isn’t what _allows_ you to ask that question in the first place. The exception just means that under certain circumstances, you can use the suspect’s response to that question in court. But only those responses that are related to public safety. If they asked him whether he had been reading Jihadist websites in the recent past, I’m pretty sure that would not be admissible unless he had been Mirandized. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 22, 2013, 3:17pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/44 "2013-04-22T15:17:33Z")
> [@Iggy](#): > > The investigation into his connections is just starting. If it is shown he has connections to a known terror group then treat him as an enemy combatant. I don’t care if he has a terrorist membership card, he committed a crime in the US and should be tried in civilian courts. The victims deserve a conviction following a fair and public trial. The bullshit “enhanced interrogations” provided very little useful information, soiled our reputation as a country of laws, and screwed up our ability to put people on trial for their crimes. Senator McCain must really hate America. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [April 22, 2013, 4:18pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/45 "2013-04-22T16:18:10Z")
> [@Iggy](#): > > \ > I think you meant responsible for the deaths of 4 people. Three by bombing. One by shooting the MIT police officer. That officer was every bit as much a victim as the others. > \ Yes, 4 people. Thank you. As this trial progresses, which brother will be held responsible for which murders and which injuries? Will it be claimed that suspect #1 only murdered/injured the victims at the site of the first explosion and suspect #2 only murdered/injured the victims at the site of the 2nd explosion (or vice versa? idk)? Which monster actually shot the MIT officer? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 22, 2013, 4:27pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/46 "2013-04-22T16:27:29Z")
> [@doorhinge](#): > > Yes, 4 people. Thank you. > > As this trial progresses, which brother will be held responsible for which murders and which injuries? Will it be claimed that suspect #1 only murdered/injured the victims at the site of the first explosion and suspect #2 only murdered/injured the victims at the site of the 2nd explosion (or vice versa? idk)? Which monster actually shot the MIT officer? co-conspirators can be held liable for everything done in the course of the conspiracy. Thus, Suspect 2 is on the hook for all damage done by both bombs, and most likely the MIT officer’s shooting, even if he didn’t pull the trigger. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 22, 2013, 4:50pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/47 "2013-04-22T16:50:18Z")
> [@Procrustus](#): > > I don’t care if he has a terrorist membership card, he committed a crime in the US and should be tried in civilian courts. The victims deserve a conviction following a fair and public trial. The bullshit “enhanced interrogations” provided very little useful information, soiled our reputation as a country of laws, and screwed up our ability to put people on trial for their crimes. Senator McCain must really hate America. Senator McCain, despite what the OP said, is not calling for him to be tried as an enemy combatant and recognizes that he must be tried in a civilian court. Please see my cites upthread. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 22, 2013, 5:04pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/48 "2013-04-22T17:04:04Z")
> [@MilTan](#): > > Could someone explain to me the distinction between being declared an enemy combatant and not being read one’s Miranda rights? The two get conflated all the time (including by Lindsay Graham, and in this thread), but they’re not the same. People get questioned without being read their Miranda rights all the time, and there’s no need to declare them an enemy combatant to do so. What would declaring someone an enemy combatant do over and above not reading them their Miranda rights?.. Everything relies on the assumption the suspect does not already know his rights. As you stated in the part I did not quote, Miranda informs a suspect of their rights. Upon hearing “silent” “lawyer” a suspect might not talk or ask for a lawyer. He might not, but the likelihood increases some amount. A lawyer would likely advise the suspect to remain silent. If a person is declared an enemy combatant, they can be questioned without being informed of their right to remain silent and without access to a lawyer for information gathering purposes. That’s the difference. I don’t think the information would be admissible in court; especially if it falls outside the public safety exception. I could be wrong, but it would be more intelligence gathering versus evidence gathering. It’s all about the _ **risk** _ of not getting critical future life-saving information. It’s done by removing a person’s rights. They could Mirandize him, he could waive it or not understand it, and talk. It’s just the “risk” that it would spark him to remain silent and/or get a lawyer. Under either scenario, he does not have to talk if he does not want to. He just wouldn’t be informed of that. Now, you can’t just willy nilly label someone an enemy combatant. Information/intelligence has to suggest you belong to an enemy we are at war with (or the acts the person/group did initiated a war - Boston bombing did not). So here, he has to fall under the AUMF re: War on Terror - be in al qaeda, Taliban, or al qaeda affiliate. Nothing I’ve read suggests this. Senator Graham, caught in a catch 22, acknowledges this and can only offer that yes, he does fall under the AUMF because he has ties to Chechnya and there are known al qaeda operatives in Chechnya. He wants to question him to find out more about his ties/any future bombings. A lawyer would hinder that process of intelligence gathering. Obviously, that’s not good enough to put that label on him. I imagine Graham knows this, and practically speaking, until a habeas hearing is held and a ruling of “nothing suggests he’s an enemy combatant, release him from military detention” - they’d have asked him enough questions. Depends on how quick that habeas hearing is. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 22, 2013, 5:16pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/49 "2013-04-22T17:16:28Z")
> [@doorhinge](#): > > Yes, 4 people. Thank you. Possibly 5 people, with the fifth being Suspect #1, who Tsarnaev ran over as part of his attempt to avoid capture. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [April 22, 2013, 5:18pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/50 "2013-04-22T17:18:54Z")
The White House says he won’t be treated as an enemy combatant. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 22, 2013, 5:24pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/51 "2013-04-22T17:24:24Z")
> [@John\_Mace](#): > > Senator McCain, despite what the OP said, is not calling for him to be tried as an enemy combatant and recognizes that he must be tried in a civilian court. Please see my cites upthread. Here’s McCain’s statement. If you want to try someone in civilian court, it is best not to violate the Rules of Criminal Procedure in the first 30 days. You’re asking for trouble. > [@](#): > > The suspect, based upon his actions, clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent. > > “We are encouraged our High value detainee interrogation team (HIG) is now involved and working to gather intelligence about how these terrible acts were committed and possibility of future attacks. > > “A decision to not read Miranda rights to the suspect was sound and in our national security interests. > > “However, we have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect. > > “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. > > “The public safety exception is a domestic criminal law doctrine that allows questioning of a criminal suspect without Miranda warnings for a limited time and purpose. > > “We hope the Obama Administration will consider the enemy combatant option because it is allowed by national security statutes and U.S. Supreme Court decisions. > > “We continue to face threats from radical Islamists in small cells and large groups throughout the world. They have, as their primary focus, killing as many Americans as possible, preferably within the United States. We must never lose sight of this fact and act appropriately within our laws and values.” ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [April 22, 2013, 5:31pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/52 "2013-04-22T17:31:32Z")
> [@Procrustus](#): > > Here’s McCain’s statement. If you want to try someone in civilian court, it is best not to violate the Rules of Criminal Procedure in the first 30 days. You’re asking for trouble. I quite agree. I think it is fundamentally at odds with the common understanding of what a civilian criminal trial is. John Mace apparently does not agree. But, if we’re going to debate this, wouldn’t it be better in the thread in Great Debates, rather than a poll thread in IMHO? ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [April 22, 2013, 5:47pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/53 "2013-04-22T17:47:27Z")
I said of course not, he’s a US citizen on US soil. John McCain has proven time and time again that the only interest he has in life is shitting in Obama’s face at every opportunity. Anything he says that involves Obama in any way should be disregarded. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [April 22, 2013, 5:54pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/54 "2013-04-22T17:54:14Z")
> [@Marley23](#): > > The White House says he won’t be treated as an enemy combatant. [Cite here.](http://usnews.nbcnews.com/_news/2013/04/22/17860373-boston-marathon-bomb-suspect-charged-with-using-weapon-of-mass-destruction?lite) He will be tried in a civilian court. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 22, 2013, 5:58pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/55 "2013-04-22T17:58:15Z")
> [@Procrustus](#): > > Here’s McCain’s statement. If you want to try someone in civilian court, it is best not to violate the Rules of Criminal Procedure in the first 30 days. You’re asking for trouble. Not really. They have enough evidence against him that they probably won’t need to use anything he tells the FBI before he is Mirandized. Remember, you don’t have a fundamental right to be read the Miranda quote, and people are tried and convicted all the time without that happening. n.b.: I’m not saying I agree with McCain, but I think many people are over-inflating this whole Miranda thing. I blame too much viewing of _Law and Order_. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 22, 2013, 6:09pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/56 "2013-04-22T18:09:17Z")
> [@John\_Mace](#): > > Not really. They have enough evidence against him that they probably won’t need to use anything he tells the FBI before he is Mirandized. Remember, you don’t have a fundamental right to be read the Miranda quote, and people are tried and convicted all the time without that happening. > > n.b.: I’m not saying I agree with McCain, but I think many people are over-inflating this whole Miranda thing. I blame too much viewing of _Law and Order_. I wasn’t even thinking about _Miranda_ rights. Like you, I don’t think it’s a big deal. There are all kinds of other requirements in the Rules that presumably wouldn’t kick in if the case was handled outside the civilian system for any significant period. The right to an initial appearance, the right to counsel, the right to a bail hearing (ha!), the right to discovery, etc. The government shouldn’t just hold a person in custody and ignore the Rules because it really really would like to. As I said, it will complicate things later. In addition, people in the civilian system talk all the time, even after being advised of their rights, and even after getting a lawyer. Imagine what a bargaining chip the death penalty could be in such a discussion. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 22, 2013, 6:41pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/57 "2013-04-22T18:41:35Z")
> [@Procrustus](#): > > I wasn’t even thinking about _Miranda_ rights. Like you, I don’t think it’s a big deal. There are all kinds of other requirements in the Rules that presumably wouldn’t kick in if the case was handled outside the civilian system for any significant period. The right to an initial appearance, the right to counsel, the right to a bail hearing (ha!), the right to discovery, etc. The government shouldn’t just hold a person in custody and ignore the Rules because it really really would like to. As I said, it will complicate things later. > > In addition, people in the civilian system talk all the time, even after being advised of their rights, and even after getting a lawyer. Imagine what a bargaining chip the death penalty could be in such a discussion. Well, I think there is more than a little grandstanding going on here by McCain and Graham, so I’m not sure they’re even all that much invested in what they claim to be wanting. At least Graham, though, seems to defer to “federal judges” in his own statement. The joint message they sent out was a lot loser and vaguer about the whole process. Additionally, it seems to me that if the president can designate a US citizen to be assassinated without judicial review, he can designate a US citizen to be held as an EC. I don’t think he should be able to do either, but those arguing in favor of the former puzzle me if they are against the latter. ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [April 22, 2013, 7:08pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/58 "2013-04-22T19:08:08Z")
> [@John\_Mace](#): > > Well, I think there is more than a little grandstanding going on here by McCain and Graham… On this point we are entirely in agreement. > [@](#): > > I don’t think he should be able to do either, but those arguing in favor of the former puzzle me if they are against the latter. Totally with you here as well. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [April 22, 2013, 7:39pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/59 "2013-04-22T19:39:41Z")
> [@CoolHandCox](#): > > It’s all about the _ **risk** _ of not getting critical future life-saving information. It’s done by removing a person’s rights. They could Mirandize him, he could waive it or not understand it, and talk. It’s just the “risk” that it would spark him to remain silent and/or get a lawyer. > > Under either scenario, he does not have to talk if he does not want to. He just wouldn’t be informed of that. Again, not being Mirandized doesn’t remove your right to remain silent. You still have that right. The risk to not Mirandizing the suspect is that if you interrogate him, and he talks about his terrorist terrorism activities, you won’t be able to use his statements in court. But the case against this particular suspect isn’t going to depend on his confession. They can chat with him about his terrorist terrorism, and he can say whatever, but they aren’t going to need to bring that up in court. And the “public safety” exception to Miranda isn’t that they can interrogate you if there’s a public safety issue. It’s that your statements can be used in court even though you weren’t Mirandized. The cops can interrogate you whenever they like, with or without a lawyer, with or without Mirandizing you. The only thing that will happen is that sometimes they won’t be able to use your responses against you in court. If they don’t care about that, then there’s no need to Mirandize you. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 22, 2013, 8:09pm UTC](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349/60 "2013-04-22T20:09:18Z")
> [@Lemur866](#): > > …The cops can interrogate you whenever they like, with or without a lawyer, with or without Mirandizing you. The only thing that will happen is that sometimes they won’t be able to use your responses against you in court. If they don’t care about that, then there’s no need to Mirandize you. I misread the post I was responding to. His question is more in line with what I have quoted from you. My answer is roughly the same. I’m not talking about getting admissible evidence, I understand all that. I’m only talking about increasing the likelihood that words will come out of a suspect’s mouth in response to a question. i.e., they’ll talk. So the difference as I understand the post now is, as an Enemy Combatant, you lose access to your right to a lawyer, as a civilian, you always have that right whether you’re informed of it or not. Access to a lawyer dramatically decreases the chance you will talk. You still don’t have to physically talk in response to questions, of course.. [Previous page](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349.md?page=2) [Next page](https://boards.straightdope.com/t/dzhokhar-tsarnaev-should-he-be-treated-as-an-enemy-combatant-or-not/656349.md?page=4)