Bombing suspect still hospitalized as battle brews over his right to remain silent

A pointed legal and political fight has begun over whether the wounded ethnic Chechen suspected of being one of two Boston Marathon bombers should be treated as an enemy combatant, instead of as a conventional criminal.

With formal charges imminent, Republican lawmakers want the Justice Department to designate 19-year-old Dzhokhar Tsarnaev as an enemy combatant, while senior Democrats warn that the move is unwarranted.

The outcome will determine how Tsarnaev is treated, and, in particular, how he is questioned. Though the naturalized U.S. citizen appears ineligible for the kind of military commissions established for foreign terrorists, designation as an enemy combatant could subject him to extended, isolated interrogation.

“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,” Republican Sen. Lindsey Graham of South Carolina said Sunday on CNN’s State of the Union.” “That evidence cannot be used against him in trial. That evidence is used to protect us as a nation.”

Politically, too, the Justice Department’s eventual decision will have consequences. Congressional Republicans are leading the call for Tsarnaev to be designated an enemy combatant, and they appear poised to use the issue against the Obama administration if they get a chance.

“I very much regret the fact that there are those that want to precipitate a debate over whether he’s an enemy combatant or whether he is a terrorist, a murderer, et cetera,” Democratic Sen. Dianne Feinstein of California, chair of the Senate Permanent Select Committee on Intelligence, said on Fox News Sunday.

Even if he’s not designated an enemy combatant – or “unlawful” combatant, in the term preferred by the Obama administration – Tsarnaev can be questioned for a time without an attorney present under a public safety exception to the standard Miranda rights. The U.S. Attorney for Massachusetts, Carmen Ortiz, said Friday that “the government has that opportunity now” to invoke the exception.

For now, Tsarnaev is talking to no one. Sedated and held under close guard at Boston’s Beth Israel Deaconess Medical Center since his capture Friday night following several shootouts, Dzhokhar is intubated and in serious condition, according to officials. Republican Sen. Dan Coats of Indiana, a member of the Senate Intelligence Committee, said Sunday on ABC’s This Week that Tsarnaev was shot in the throat, rendering him speechless for at least the time being.

“It’s questionable when and whether he’ll be able to talk again,” Coats said.

Tsarnaev’s brother and suspected bombing accomplice, 26-year-old Tamerlan Tsarnaev, died early Friday morning after a car chase and confrontation with police that ended in some 200 shots being fired. Republican and Democratic lawmakers agreed Sunday that they need more information about the FBI’s questioning of Tamerlan Tsarnaev in 2011 at the request of the Russian government.

Dzhokhar managed to flee the Friday night shootout, inadvertently hitting his brother with a stolen Mercedes SUV. Ditching the car and escaping on foot, Dzhokhar hid out in a boat parked behind a house in suburban Watertown, Mass., until being discovered Friday night.

State and federal charges alike could be brought against the surviving Tsarnaev as early as Sunday night or Monday, for the bombing last Monday that killed three and injured more than 180. More than 50 individuals remained hospitalized Sunday, some of them with amputated limbs, according to hospital spokespersons.

The state of Massachusetts does not allow for the death penalty. The federal government does, for crimes including first-degree murder and the murder of a law enforcement officer. The myriad charges against Tsarnaev will likely include the killing a 26-year-old Massachusetts Institute of Technology police officer, gunned down late Friday night.

“There’s going to be a great deal of evidence put together to be able to convict (Tsarnaev), and it should likely be a death penalty case under federal law,” Feinstein said.

Characterized by President Barack Obama last week as “an act of “terrorism,” the Boston Marathon bombing falls into a complicated legal terrain that’s been shaped by the administrations of both Obama and former President George W. Bush, as well as by the Supreme Court.

The court, in a 1966 case prompted by the interrogation of suspected Arizona rapist Ernesto Miranda, determined suspects must be informed that they have the right to remain silent as well as the right to an attorney. These protections, though, are not absolute.

A more conservative Supreme Court majority in 1984, in a case involving the search for a suspected New York rapist, carved out the public safety exception to the standard Miranda rulings, while making clear that a suspect’s statements must be voluntary in order to be used against him.

“When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial,” the FBI states on its website.

An October 2010 FBI memo further elaborated that, in terrorism cases, special agents “should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” The upshot of the memo was to encourage lengthier questioning of terrorism suspects without lawyers being present

A special High Value Detainee Interrogation Group is in place to conduct the questioning. According to the FBI, the group is designed “to deploy the nation’s best available interrogation resources against detainees identified as having information regarding terrorist attacks against the United States and its allies.”

At some unspecified point, perhaps within several days, time runs out on the public safety exception. This is where conservatives say the enemy combatant designation can help.

“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 lawto gather intelligence from enemy combatants,” Graham said Sunday.

Information gathered during such an extended interrogation, once it’s moved beyond the limited time allowed under Miranda’s public safety exception, could not be used against Tsarnaev during trial.

The Supreme Court, in a 2004 decision involving a Louisiana native named Yaser Esam Hamdi, ruled that U.S. citizens could be held as enemy combatants, and also that they could challenge the designation. The court’s decision, though, was also confined to the fact that Hamdi had been seized in Afghanistan, a country targeted by the 2001 congressional Authorization for the Use of Military Force against those that “planned, authorized, committed, or aided” the 9/11 terrorist attacks.

With the authorization of force now more than 11 years old, its applicability to the younger Tsarnaev - an individual with no publicly known connections to Al Qaeda - remains legally disputable.

“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,” warned Democratic Sen. Carl Levin of Michigan, the chair of the Senate Armed Services Committee.

Jonathan Landay also contributed to this report.