Now that suspected marathon bomber Dzhokhar Tsarnaev is in custody, it's time to turn our attention onto the next steps. Should he survive his wounds -- right now he's in serious condition -- he will most likely face charges and prosecution. But from a civilian or a military court?
Republican Senator Lindsey Graham has tweeted -- several times -- to express his desire that Tsarnaev, an American citizen, be treated as "an enemy combatant" and pumped for information that could "protect our nation which is under threat from radical Islam." Graham is very much against Tsarnaev being read the Miranda warning:
The Law of War allows us to hold individual in this scenario as potential enemy combatant w/o Miranda warnings or appointment of counsel.— Lindsey Graham (@GrahamBlog) April 20, 2013
He's now taken to several forms of social media to say so, issuing a joint statement with John McCain on his Facebook page that basically repeats what he's been saying on Twitter. There is a "public safety" exception to the Miranda warning, as the FBI's website explains:
The public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger. Because the standard is objective, the availability of the exception does not depend on subjective motivation of the officers. Legitimate concerns for officer safety or public safety prompting unwarned custodial questioning arise in a variety of contexts. A common factor that can be gleaned from the courts addressing this issue is the prior knowledge or awareness of specific facts or circumstances that give rise to the imminent safety concern that prompted the questioning.
The public safety exception comes up from time to time, usually when there's some kind of terrorist threat. At the press conference following Tsarnaev's capture, U.S. Attorney for Massachusetts Carmen Ortiz confirmed that the public safety exception was being invoked. That said ...