Washington Memo: After terrorist attack, intelligence gathering is top priority
In the aftermath of the tragic terrorist attack in Boston, Americans rightly seek justice. They also want to ensure that we collect as much information as we can from Dzhokhar Tsarnaev to keep Americans safe.
The criminal justice system was established to pursue justice – not gather intelligence that is critical to protecting national security. Under the law, as an American citizen, Tsarnaev can only be tried in civilian court. The Monitor’s Tuesday editorial makes an inaccurate claim that I called for the suspect to be tried before a military tribunal, which would be inconsistent with U.S. law.
As a longtime prosecutor who served for five years as New Hampshire’s attorney general, I have great respect for our criminal justice system. And while I have no doubt that the Boston suspect will be successfully prosecuted in civilian court, that system is not designed to gather potentially valuable intelligence that could prevent future attacks and protect our national security.
Imagine, for example, if we’d caught one of the 9/11 hijackers before the attacks on our country. Would we have told him he has the right to remain silent? Would we have limited interrogation to a few hours or days? Is that what we will do if we’re fortunate enough to interrupt the next terrorist attack on our homeland?
After only limited interrogation, the Department of Justice quickly charged Dzhokhar Tsarnaev in federal court. The magistrate judge accordingly advised him of his Miranda rights and appointed him counsel, and Tsarnaev invoked his right to remain silent. This happened despite the fact that the law allows an American citizen who commits a terrorist attack against our nation – and who has potential ties to foreign terrorist groups – to be held as an enemy combatant and questioned at length, for purposes of protecting our country. While our law enforcement and intelligence personnel are highly skilled, mere hours of questioning are not enough time to determine all that the suspect knows. In this case, we needed to find out whether the brothers had contact with, received direc-
tion from, or had financial ties to foreign terrorist groups. We also need to learn whether there were co-conspirators, and whether there are any future attacks planned against us.
For example, the suspect’s brother, Tamerlan, who was killed during a shootout with police, allegedly visited Dagestan and Chechnya in 2012. There are reports that he attended a mosque there frequented by extremists, and a Russian intelligence report claims he may have met with a suspected militant. Tamerlan’s online postings also indicate he was a follower of al Qaida-linked extremists. These details alone underscore why we need to know about the brothers’ possible ties to terrorist groups. That process takes longer than a matter of hours.
Contrary to the Monitor’s assertion, if he was held as an enemy combatant to determine whether he had ties to foreign terrorist organizations, Tsarnaev’s constitutional rights would be protected. He would be entitled to a habeas hearing before a federal judge, generally within 30 days. The focus of that hearing would be whether or not there is sufficient evidence to justify enemy combatant status to allow for continued intelligence gathering and questioning. After sufficient intelligence has been obtained, the suspect could still be charged in federal court and would have all the rights associated with that system. And none of the evidence gained from his questioning without a Miranda warning could be used against him during trial, consistent with our Constitution.
The decision to bring Tsarnaev immediately into our civilian system – where he was advised of his right to remain silent and given counsel – effectively cedes basic intelligence gathering to his defense lawyers. While defense lawyers perform an important function in our society, they should not be the gatekeepers of intelligence vital to our national security.
As the investigation into the Boston bombing proceeds, law enforcement officials will now have to consult with Tsarnaev’s lawyers – and conceivably even bargain with them – to question him.
If every time we are attacked on American soil we put terrorist suspects immediately into civilian custody, it will make it more difficult to collect the intelligence we need to protect our country. Since being given a lawyer, Tsarnaev has invoked his right to remain silent. Holding Tsarnaev as an enemy combatant to determine whether he has ties to terrorist groups, whether he was working for or funded by them, and whether there are co-conspirators, and then trying him in our civilian system for his terrorist acts, would have been the best way to first protect our country and then achieve justice.
(Republican Sen. Kelly Ayotte serves on the U.S. Senate Armed Services Committee and the Senate Homeland Security and Governmental Affairs Committee.)