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Treat Boston bombing suspect as enemy combatant, GOP lawmakers say

| Sunday, April 21, 2013, 8:54 p.m.

WASHINGTON — A 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 charges imminent, Republican lawmakers want the Justice Department to designate Dzhokhar Tsarnaev, 19, as an enemy combatant, while senior Democrats say that's 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,” Sen. Lindsey Graham, R-S.C., said on 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, the Justice Department's decision will have consequences. Congressional Republicans are leading the call for Tsarnaev to be designated an enemy combatant, and they appear ready 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,” Sen. Dianne Feinstein, D-Calif., chairwoman 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. Carmen Ortiz, the U.S. Attorney for Massachusetts, said on Friday that “the government has that opportunity now” to invoke the exception.

Sen. Dan Coats, R-Ind., a member of the Senate Intelligence Committee, said 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.

It's not clear whether Tsarnaev was shot by police or inflicted the wound himself.

Authorities on Sunday said that Tsarnaev, who has been under close guard in Boston's Beth Israel Deaconess Medical Center , was awake and responding in writing to their questions.

Tsarnaev's brother and suspected bombing accomplice, 26-year-old Tamerlan Tsarnaev, died early Friday during a car chase and confrontation with police that ended with about 200 shots being fired.

State and federal charges could be brought against Dzhokhar Tsarnaev for the bombings that killed three and injured more than 180. More than 50 people remain hospitalized, some with amputated limbs, the hospitals said.

Massachusetts does not have a death penalty. The federal government does, for crimes including first-degree murder and the murder of a law enforcement officer. The charges against Tsarnaev will likely include the killing of Massachusetts Institute of Technology police Officer, Sean Collier, 26, who was gunned down late Thursday.

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