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CROWLEY: I am joined by Senator Chuck Schumer, a Democrat from New York, and South Carolina Republican senator, Lindsey Graham, with whom we just mentioned cooperated and came up recently with a bipartisan immigration bill. I want to get to that as well the effect of Boston on that discussion.
But let me first ask you, you heard Congressman McCaul written a letter to some of the feds saying I wanted to know what you knew about this older suspect. It seems that, in fact, this is a man who did come to the attention of the FBI, to the attention of intelligence operatives here in the U.S. but was cleared and sort of sent on his way. Do either one of you see anything of what you know so far that alarms you about a suspect sort of appeared on the radar and went away?
SCHUMER: Well, I wouldn't say alarm, Candy, but there's certainly a lot of questions. First, let me say I have a lot of faith in the FBI and I wouldn't jump to conclusions, but there are a lot of questions that had to be answered. This man was pointed out by a foreign government to be dangerous. He was interviewed by the FBI once. What did they find out? What did they miss? Then, he went to Russia and then Chechnya.
Why wasn't he interviewed when he came back either at the airport when he was returning or later? And what happened in Chechnya that may have radicalized him? And third, there were things on his website that indicated that he had been radicalized certainly when a foreign government points out that something is wrong or something might be wrong, he ought to be interviewed again.
So, again, while the FBI's done a very good job over the last ten years, I certainly think there are questions that have to be answered.
CROWLEY: And Senator Graham, on the other hand, if you don't find anything about someone and he is a permanent resident, do you just want to put a red flag on him forever?
GRAHAM: No. Once you're brought to attention by a foreign government, I think you should have a red flag put then to be dropped later. The ball is dropped in one of two ways. The FBI missed a lot of things as one potential answer our laws do not allow the FBI to follow-up in a sound solid way. There was a lot to be learned from this guy.
He was on websites talking about killing Americans. He went overseas as Chuck indicated. He was clearly talking about radical ideas. He was visiting radical areas. And the fact that we could not track him has to be fixed. It's people like this that you don't want to let out of your sight and this was a mistake. I don't know if our laws are insufficient or the FBI failed, but we're at war with radical Islamists and we need to up our game.
CROWLEY: While I have you here more on the subject of terrorism versus criminals, Senator Graham, you've been very vocal about wanting the remaining suspect who's still alive to be treated as a terrorist rather than a criminal. I think this argument is lost on most people.
GRAHAM: He's both.
CROWLEY: Of course he's both.
CROWLEY: There's obviously some legal thing going on. Could you unlegalize it for me and tell me why it's so important?
GRAHAM: Sure. OK. I think most Americans want two things to happen here, that he be brought to justice. I hope he's brought to trial in federal court. He will get a fair trial. The public defender who is assigned to him should vigorously defend this young man because he or she will be helping America. That's what we do in America. He'll get all the rights associated with a federal court trial. He's an American citizen. I'm all for that, but most Americans want to find out what he knew, who he associated with, does he know about terrorist organizations within or without the country or trying to hurt us? Does he know anything about a future attack? That comes from the law of war questioning.
Two things should happen. When the public safety exception expires and it will here soon, this man in my view should be designated as a potential enemy combatant and 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. And that evidence cannot be used against him in trial. That evidence is used to protect us as a nation.
Any time we question him about his guilt or innocence, he's entitled to his Miranda rights and a lawyer. But we have the right under our law -- I've been a military lawyer for 30 years, to gather intelligence from enemy combatants. And a citizen can be an enemy combatant. He is not eligible for military commission trial. I wrote the military commission in 2009. He cannot go to military commission.
CROWLEY: So it's a civil trial no matter what?
GRAHAM: As an American citizen.
CROWLEY: Right. So let me...
GRAHAM: In my view a civil trial, it should be a federal trial.
CROWLEY: Right. And Senator Schumer, I know you agree this should go to a federal court. I want to quick read you something that one of your colleagues said. This is from Senator Carl Levin, you know, he's the chairman of the Armed Services Committee. And in response to Senator Graham and others saying this man needs to be treated as a terrorist, this is what Senator Levin said, "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. In the absence of such evidence I know of no legal basis for his detention as an enemy combatant. 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." Where do you stand on this, Senator Schumer?
SCHUMER: Well, I think that the good news is we don't need enemy combatant to get all the information we need out of him. Number one, the court, the one court that has ruled has allowed a lot of flexibility in the public safety exception before you Mirandize somebody. But second, at any time what's called a HIG, a high value interrogation group composed of the FBI, CIA and anyone else can question him without a lawyer in a secured situation and find out whatever they need. That can't as Lindsey said be used against him in a trial, but there's plenty of evidence. They don't need his confession to get him into trial. So I don't think we have to cross the line and say he should be an enemy combatant which could be challenged in court. One circuit is ruled one way, one circuit has ruled another way.
CROWLEY: Senator, the death penalty.
GRAHAM: Candy, could I comment on that?
CROWLEY: Of course, go ahead sir.
GRAHAM: Can I comment on that? This is important. Right now it's too early to determine if he has Al Qaeda connections or falls in enemy combatant definition under our laws. We won't know that by Monday or Tuesday. What I'm suggesting there's ample evidence suggests this man was a radical Islamist and that he and his brother had ties to overseas organizations. We should reserve the right after the public safety exception expires to look at him as an enemy combatant, continue to collect evidence. And if we find evidence, go to him as Chuck said without a lawyer present to gather intelligence. None of it can be used against him in court, but it could be used to protect Boston, New York and the rest of the country from a future attack. It is too early to make this determination. Don't put it in. Don't take it off the table. That's all I'm saying.
CROWLEY: Senator Schumer, I want to move along because I do want to ask you about immigration and that debate. Let me first ask you about the death penalty. Massachusetts as you know is a non-death penalty state, as many states are. Where do you stand on that and this suspect should he be found guilty?
SCHUMER: Yes. Well, the federal law allows the death penalty. I wrote the law in 1994 when I was head of the crime subcommittee in the House. This is just the kind of case that it should be applied to. In fact, the only other time it's been used since '94 is on Timothy McVeigh. And given the facts that I've seen it would be appropriate to use the death penalty in this case and I would hope they would apply it in federal court.
CROWLEY: OK. So let me move you both onto immigration. With the one big picture question to you both and that is do you see anything -- we have one suspect now deceased older brother who was a permanent resident. We have another who is a naturalized citizen as of last year. Do you see anything in the legal immigration system that you now want to go back and say we need to fix this or that and include it in our bill, Senator Graham, you first?
GRAHAM: Well, I want to know how the FBI or the system dropped the ball when he was identified as a potential terrorist. But in terms of immigration, I think now is the time to bring all the 11 million out of the shadows and find out who they are. Most of them are here to work, but we may find some terrorists in our midst who have been hiding in the shadows. When it comes to the entry/exit visa system. The 19 hijackers were all students who overstayed their visas and the system didn't capture that. We're going to fix that. In our bill when you come into the country, it goes into the system. And when your time to leave the country expires and you haven't left, law enforcement is notified. So we are addressing a broken immigration system. What happened in Boston and international terrorism I think should urge us to act quicker, not slower when it comes to getting the 11 million identified.
CROWLEY: Senator Schumer, I want you to answer this.
SCHUMER: I agree with Lindsey. Certainly keeping the status quo is not a very good argument given what happened. Let me say a couple of things. Our law toughens things up as Lindsey mentioned making the 11 million register, having a system when you come in on a visa they know when you're supposed to leave and track you down if you don't. And in fact asylum, which the Tsarnaev family came here on was greatly toughened up a few years after. They might not have gotten asylum under the present law.
And I want to say this, Candy, there are some, some on the hard right, some otherwise, who oppose our immigration bill from the get- go, and they're using this as an excuse. We are not going to let them do that. If they have a reason, a suggestion as to how to change it based on what happened in Boston, we'll certainly be open to it. But we're not going to let them use what happened in Boston as an excuse because our law toughens things up.
CROWLEY: Do either one of you just as a last question sense that there will be an attempt to slow walk this now as a result of Boston?
SCHUMER: Well, I would say --
GRAHAM: I don't know, Candy. I know -- go ahead.
SCHUMER: Go ahead, Lindsey.
GRAHAM: I know we've been dealing with this since 2005, 2006, 2007. I've been dealing with this for almost eight years now. And we have got to stop talking about a broken immigration and fix it. We have a very good solution. It can be amended, it can be debated, you can vote against it or for it, but this is no excuse to stop immigration reform, to secure our borders, control who comes and gets a job and create order out of chaos. We need to move on.
CROWLEY: Senator Schumer, last word.
SCHUMER: I would agree with Lindsey. We have ample opportunity for people to amend our bill. First it's online now. It's going to be online for three weeks before we even get to the Judiciary Committee mark. There anyone including two of the leading opponents of immigration reform, Senator Sessions and Grassley, both of whom have said this is a reason to slow it down can make any amendments they want. And then we go to the floor any one of the hundred senators could propose amendments. To not do it or to say do it six months from now is an excuse. There's ample opportunity to amend the bill if people see anything that they'd want to toughen up even further than what we have done.
CROWLEY: Senator Schumer, Senator Graham, thank you so much for being with us today.
SCHUMER: Thank you.
GRAHAM: Thank you.
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