Terrorism Trials & Investigations

Senator Graham on Tsarnaev and Miranda

By Wells Bennett
Tuesday, April 23, 2013, 10:54 AM

Yesterday, Senator Lindsey Graham held a press conference, in which he unsurprisingly lamented the White House's decision not to treat Dzhokhar Tsarnaev as an "enemy combatant."

A transcript is below.


Thank you for coming.

I understand at 2:50, we're going to have a moment of silence as a nation for the victims in Boston. I think is so appropriate, and I think the president is right to lead that effort.

Quickly, to the families who have lost loved ones, to those who have been injured, our heart breaks as a nation. To the people of Boston, you make us proud by the courage you have shown. To the law enforcement officials and intelligence community, God bless you for your hard work and your bravery.


What brings me here today is that I have been informed that the Obama administration has indicated this suspect in Boston will not be treated as an enemy combatant.

I strongly disagree with the Obama administration's decision to rule out enemy combatant status for this suspect at this time. I believe such a decision is premature. It is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war.

The decision by the Obama administration to try this individual in federal court is a sound decision. It is the right decision. Military commission trials are not available in cases like this. I wrote the 2009 Military Commission Act. I've been a judge advocate for over 30 years. Along with the help of many colleagues, we've created a military commission system for foreign terrorists.

We purposely excluded American citizens. I have all the confidence in the world in Article III courts at the federal level. They do a terrific job. I have confidence in our military commission system. The decision by the administration to not proceed into state court in Massachusetts, I think, was the correct decision.

The death penalty will be available at the federal level. This is clearly, in my view, a candidate for a case to be deemed an act of terrorism.

Here's my concern.

As a lawyer for ever 30 years, civilian and military, I strongly support the concept that no criminal defendant should be required to incriminate themself while they're in custody of their government. That is a long-held tradition in American jurisprudence in the military and civilian setting: No criminal defendant should ever be required to incriminate themself in a criminal case.


Every nation at war should have the ability to defend themselves by gathering intelligence. These are not mutually exclusive concepts. I believe our nation is at war. The enemy is radical Islam, defined as the Taliban, Al Qaida, and affiliated groups. The question I have, regarding this case, is there any association between these two individuals and the groups I just named to allow enemy combatant status to be conferred upon the suspect in Boston. What is the difference?

Under our criminal justice system, it is inappropriate to ask questions of any defendant accused to illicit information to use against them in court. There's ample evidence here on the criminal side. A first-year law student could prosecute this case. What I'm worried about is what does this individual know about future attacks or terrorist organizations that may be in our midst? We have the right to gather intelligence. Under the criminal system, you should not question someone without their lawyer present.

Under the Law of Armed Conflict, when you're trying to gather intelligence about future attacks against your nation (ph), there is no requirement for a lawyer. It would disturb me greatly if this administration is relying exclusively on the criminal justice system to gather intelligence. If we have to clear the questions that we're going to ask to gather intelligence through the terror suspect's lawyer, it would greatly diminish our ability to control the process.


The last thing in the world I want to do is turn intelligence gathering over to the terror suspect and their lawyer. I hope that the administration will look long and hard at the evidence and keep on the table the ability to interrogate this suspect for intelligence-gathering purposes about future attacks that we may face.

None of the evidence on the intel side can be used in a criminal court. We're not prosecuting crime under the Law of War, we're trying to protect the nation. Intelligence gathering is a national security endeavor. Prosecuting someone in federal court is a criminal enterprise. Over the coming days and weeks, we will have discussions about how best to defend our nation.

The best way we can defend America is to realize we're at war. We did not choose this war, we did not want this war, but it has come to our shores twice. And now how can we defend ourselves against a vicious enemy who is recruiting American citizens to their cause in our own backyard? We fight the war within our values, and our legal structure. We provide lawyers, Al Qaida does not. That makes us stronger, not weaker.

We have the ability under the Law of War, to gather intelligence in a way to make sure that our country is safe from future attacks. The ability to talk to individuals who may know about terrorist organizations plotting our future demise is a long-held concept under the Law of War. I am asking this administration to leave on the table, the option if the evidence warrants, to designate this individual as an enemy combatant. What do we know? We know that these two individuals embraced radical Islamic thought, that there's ample evidence that this was an attack inspired by radical ideology.


They were not trying to rob a bank in Boston. They slaughtered innocent people because they view us, the United States, as a colonial power, a Christian nation, infidels.

The Muslim world as a whole can be our friend. I've traveled throughout the world, and I've met many people throughout the world of the Islamic faith who are great allies and great friends of America. Unfortunately, there's a small minority radical Islamist who would kill every moderate Muslim, Jew, gentile, Christian, any person who disagrees with them.

It is imperative that we protect the homeland. The desire of this enemy is to strike us in our own back yard. I do not wish America to be the battlefield, but it is. It is the choosing of our enemies to make our homeland the battlefield. All I ask is that within our values and within our legal system we retain the right to defend ourselves.

The values I embrace is interrogation under the law of war, not torture. I along with Senator McCain spoke loudly during the Bush years about interrogation techniques that I thought were out of bounds in terms of our laws and who we are. But let me firmly say this, that having been a military lawyer for 30 years, I know the difference between prosecuting crime and trying to prevent a future attack.

The ability to have access to this suspect without a lawyer present to gather intelligence about a future attack is absolutely essential to our national security. If over time the evidence suggests, after a reasonable opportunity to make this decision, this suspect does not fall into the statutory definition of an enemy combatant, I will accept that result.


I think to rule that decision out now is premature and is unfair to those who are trying to protect us. I don't know how in the world we can make that decision by Monday afternoon, given the recent nature of this attack.

I will continue to work with the administration to create laws that live within our values, that allow us the tools to defend ourselves against a vicious enemy and on March 25, I wrote to the judge advocate general community, all of our military lawyers. I asked them 15 questions, and you can read those questions for yourself, I won't bore you. But on March 25, I asked questions that applied to what happened today.

I've seen this coming for a very long time. I've taken the floor on multiple occasions in the United States Senate to prepare our nation for this day. This day has finally arrived. The day when he evidence suggests that two people, one an American citizen, the other in legal status, took up arms against our country. The evidence right now to me is ample, and overwhelming to suggest that the attacks in Boston were inspired by radical jihadists, and their ideology. I do not want to jeopardize anything with defendants rights to a fair trial. The public defenders who will be assigned to this case should vigorously defend this young man.

By doing so, you make us all safe. But having said that, it is imperative that we have time with this suspect, not to prove he is guilty or innocent, there is ample evidence of that, but to gather intelligence as to what he may know about terrorist organizations that exist, or others who may be planning to attack our country.


I hope that the Congress will look at this case, and look at our laws, and come to the conclusion that I have come to. We're at war. We're going to be at war for a very long time, and we have to have the tools to defend ourselves within our values.

One of those tools is the ability to question people about future attacks to gather intelligence for national security purposes without benefit of counsel. The information will never be used in a court of law against the suspect. It will be used to protect us.

And the last thing in the world we should do, in the times in which we live, is to limit our ability to gather intelligence to the criminal justice system. Because, in essence, you will have turned over the intelligence gathering process to the accused and their lawyer.

Thank you, very much.


Senator Graham, right now, people who are on the Terrorism Watch List can still buy a gun. What do you think of that policy?


I think, anyone who's on the Terrorist Watch List should not lose their Second Amendment right without the ability to challenge that determination. I think, Senator Kennedy was on the Terrorist Watch List. There've been people come up on the watch list. I did not want to make that a -- the basis to take someone's Second Amendment rights away.

What I would suggest, is that if you come up on the Terrorist Watch List, you have the ability to say, "No, I'm not a terrorist." And that would be the proper way to do that.

As to an enemy combatant determination, every person designated as an enemy combatant under our system has the ability to petition a federal judge through the habeas review process. And the government is required to prove by preponderance of the evidence that the person is, in fact, an enemy combatant and meets the statutory definition. No one is without due process. Under the criminal justice system, the government has to prove, beyond a reasonable doubt, the statutory elements of the crime charged.


One system is designed to bring justice, to bring justice to a criminal act. The other system is designed to protect us against future terrorist activity. They both, in my view, exist in harmony in our law. I would urge the Obama administration to use both systems.


(OFF-MIKE) stalling of the -- of the older suspects name when he was traveling to Russia...


You know this -- I spoke 45 minutes last night with the associate director of the FBI. I think all of us are wondering, if the Russians told us about this guy being a radical Islamist in 2011, how could we have missed it.

According to the FBI, they took the report from the Russians seriously. They interviewed the suspect themself, his family members and those people he went to school with and I think school officials. They put his name through the system and found one instance of domestic violence. They sent that report to the Russians, and said, "Do you have any more," because they didn't have enough.

They never got a reply.

He went to Russia. How could we not know that? Apparently the misspelling of his name was such that he did not pop up in the system. Now did he intentionally misspell his name? Or did Aeroflot -- the Russian airline -- just get it wrong? I don't know.

But, here's the question we all should be asking. Let's assume for a moment the FBI made a diligent effort to make an investigation based on the Russian information and, quite frankly, from what they told me that withstand scrutiny and I assume it will, they did. But, how could we, from 2012 'til the attack, miss all of the radical statements and activity this guy engaged in -- the older brother -- on the Internet and the YouTube videos.

The FBI is telling me that some of the tools they need are not there. So is this a question of the FBI not using the tools available to them, or is this a question, there are not enough tools in the tool box? I think we need to learn that.

But, yes, I'm worried about how misspelling he could not be found out.


This is the second time this has happened though, right, with the underwear bomber?


It is the second time -- let me tell you the pattern that bothers me most.

The underwear bomber was Mirandized within 45 minutes. And I don't care if you read people the Miranda rights, I just don't want you to shut down the intelligence-gathering process.

That individual was never designated an enemy combatant. The only way he agreed to cooperate, was the FBI agents flew his family in, and his parents convinced him. The Times Square bomber, the -- the -- the Time Square bombing incident, he had Pakistan Taliban ties. He was read his Miranda Rights, never designated an enemy combatant. We never interrogated him for intelligence gathering purposes.

Osama bin Laden's son-in-law, Abu Ghaith is in federal court -- in the federal system today. He was read his Miranda Rights, and he's never been designated an enemy combatant. Can you imagine what Osama bin Laden's son-in-law could tell us about the terrorist organizations? He was the spokesman for -- for Al Qaida after 9/11. So, there's a disturbing pattern here, quite frankly, of not gathering intelligence when that opportunity exists.

Thank you very much, I have to go. I am going to do a pen-and-pad and we'll go next door to answer any questions you have about the FBI. And again, we're going to observe a moment of silence here for the folks in Boston.