Interrogate Boston Bomber for Intelligence & Then Prosecute Him

Some politicians and pundits are agitating for the captured Boston Marathon bomber to be declared an enemy combatant, sent to Guantanamo, and tried in a military commission. But the only legal, pragmatic, and effective way to handle this situation is to conduct a lengthy interrogation of Dzhokhar Tsarnaev and then prosecute him in United States federal court.

First, it is important to dispense with the misinformation. Under law, U.S. citizens cannot be prosecuted in the military commission system Congress set up for the detainees at Guantanamo. So this is not even a lawful option for dealing with Tsarnaev, who is a naturalized U.S. citizen.

The option of designating Tsarnaev an enemy combatant and transferring him to military custody for indefinite detention is probably illegal and, in any event, a terrible idea. The Supreme Court has held that an American citizen captured on the battlefield can constitutionally be detained under the laws of war as an enemy combatant. It has not extended this concept to citizens like Tsarnaev who are arrested in the United States for terrorism crimes. Furthermore, the Court's reasoning relied heavily on the law passed by Congress just after 9/11 that empowered the president to use "all necessary force" against any individual, organization or nation that perpetrated the 9/11 attacks. So, to place the younger Tsarnaev brother in military detention the government would need evidence that he was an active member of al Qaeda or an al Qaeda affiliated group -- information it almost certainly lacks, at least at the present date.

Placing Tsarnaev in military custody would also backfire against the United States. The action would elevate him to the status of a warrior, when we should be treating him as a low life criminal. The matter would also become a high-profile case for the international human rights community, focusing negative attention on the United States' practices rather on the perpetrators' heinous acts. Such an action would also undercut our moral authority to encourage other countries to rely on fair, open systems of justice for dealing with civilian matters rather that military control of domestic affairs.

The purported justification for using military detention is to enable authorities to engage in a lengthy interrogation of the suspect free from civil liberties concerns like Miranda warnings and the right to counsel. However, a proper interrogation should be able to be conducted in the civilian system, which would obviate the need for military detention.

In my view, the highly skilled High Value Interrogation Group created by President Obama should conduct an un-Mirandized interrogation of Tsarnaev by for as long as necessary. Information gathered in these sessions would not be turned over to the prosecutorial team and used for intelligence purposes only, such as determining any linkages Tsarnaev and his brother may have had to international terrorist organizations or other operatives living abroad. None of this information will be at all necessary to obtain a criminal conviction against Tsarnaev as there appears to be ample forensic evidence, eye-witness testimony, pictures and video to establish proof beyond a reasonable doubt that he is a terrorist and mass murderer.

After this interrogation is over, the case should enter the criminal justice system, starting with Miranda warnings. A new team of investigators could then interrogate the suspect, unless he invokes his right to remain silent and desire for counsel.

Civil libertarians may flinch at this suggestion, but there would be no constitutional violation. The right at stake is the protection against self-incrimination. If the intelligence that is gained from the High Value Interrogation Group is only used for national security purposes and not to prosecute Tsarnaev -- there is no self-incrimination problem.

Furthermore, the approach I suggest is far more protective of civil liberties than what the Obama administration is doing now, which is invoking the "public safety" exception to Miranda. Under this concept, the administration claims the right to conduct an un-Mirandized interrogation of the suspect to collect information relating to protecting the public from possible additional acts of violence. The Supreme Court has authorized such interrogations for up to 48 hours, but the administration has argued that in cases of this magnitude the public safety interrogations could last even longer. Moreover, by relying on this exception, the administration is reserving the right to use whatever evidence it collects in the un-Mirandized interrogations in its criminal case against Tsarnaev.

The courts will have the final say on whether intelligence interrogations can take place absent Miranda warnings. Yet, Congress could bolster the case for them by enacting a new law to define when they could take place and the procedures the government must use to protect the rights of the criminal suspect. Enacting a law along these lines would be a positive new tool to enhance our national counterterrorism defenses. It would certainly be a more productive activity than the tired calls for military detention of U.S. citizens.

David H. Schanzer is an associate professor of the practice of public policy and the director of the Triangle Center on Terrorism and Homeland Security.  This commentary was originally published in The Huffington Post.