U.S. Senators Lindsey Graham (R-South Carolina), John McCain (R-Arizona) and Kelly Ayotte (R-New Hampshire) and Congressman Peter King (R-New York) today made the following statement.
"We applaud our law enforcement for their hard work and bravery in Boston.
"It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.
"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.
Law of War / National Security Detainment
* American citizens who take up arms against our nation or collaborate with our enemies have been held as enemy combatants. This is well-established principle of American jurisprudence and authorized by congressional statute. ("There is no bar to this Nation's holding one of its own citizens as enemy combatant." -- Supreme Court decision Hamdi v Rumsfeld)
Criminal domestic law is focused on solving a crime. The Law of War is focused on protecting our national security.
An enemy combatant held under the Law of War is not entitled to Miranda rights or appointment of counsel.
The questioning of an enemy combatant for national security purposes has no limit on time or scope. In a case like this it could take weeks to prepare the questions that are needed to be asked and months before intelligence gathering is completed.
An enemy combatant is entitled to a habeas hearing before a federal judge with appointment of a counsel. This takes place, usually, within 30 days of capture.
The focus of the habeas hearing would be whether or not there is evidence to justify the enemy combatant status determination which would then allow continued confinement for intelligence gathering.
As to any future trial, if this suspect is an American citizen he is not subject to military commission trial. This exclusion, was authored by Senator Graham in the Military Commissions Act.
Under the Law of War, the suspect must be humanely treated, consistent with the Detainee Treatment Act, and other domestic law, and the Geneva Conventions.
In the future, when the suspect is committed to our federal court system he will have all the rights associated with that system.