The Boston Marathon bombing has renewed an old debate about how to handle lone wolves — terrorists who, like Dzhokhar Tsarnaev, are inspired by al-Qaeda’s murderous ideology but don’t appear to be formally affiliated with the group. These freelancers may not be enemy soldiers, but they’re not common criminals either. They’re hybrid threats who occupy an uneasy space between the worlds of law enforcement and armed conflict, and special laws are needed to interrogate them effectively.
Now that the surviving bomber is in custody, our top priority shouldn’t be convicting him of his crimes, important as that is, but collecting intelligence to thwart future atrocities. Interrogation may be the best way to uncover whether the brothers were planning more attacks, where they learned how to make bombs, and other vital information. There are several possible approaches, some better than others.
The criminal-justice system isn’t designed for intelligence gathering, though it does permit limited interrogation.
In New York v. Quarles (1984), the Supreme Court held that police can question a suspect without Miranda warnings or a lawyer if there are immediate public-safety concerns. The public-safety exception originally was crafted for heat-of-the-moment exigencies — e.g., a cop who asks the robber he’s just arrested “where’s the gun?” Courts could extend it to allow lengthier questioning of captured terrorists.
Yet the criminal approach has obvious shortcomings. The amount of time needed to interrogate a captured terrorist is usually measured in weeks or months, not hours or days. At some point the public-safety clock will run out, and authorities will have to start treating him like any other criminal defendant.
Once a suspect is read his Miranda rights, interrogation is difficult if not impossible. Tsarnaev apparently spoke freely with investigators after his arrest, but he clammed up when he was Mirandized. The same thing reportedly happened with Omar Farouk Abdulmutallab, the 2009 underwear bomber.
Military interrogation isn’t ideal either, though it’s a more viable option than most naysayers acknowledge.
Federal courts repeatedly have held that those who wage war against the United States can be held in military custody — even if they are American citizens who were arrested in this country. In World War II, the Supreme Court unanimously approved FDR’s decision to subject eight Nazi saboteurs, including one American, to military detention after they were captured by the FBI. A federal appellate court likewise upheld the military detention of Jose Padilla, a U.S. citizen and al-Qaeda operative, after he was arrested in Chicago.
But the military approach probably isn’t available here. Detention under the laws of war is generally limited to those who fight for our enemies. And, by definition, lone wolves like Tsarnaev are not affiliated with al-Qaeda or any other terrorist group with which we’re at war.
The third option is the most promising: detention and interrogation under the material-witness statute.
Federal law allows a judge to have a person arrested if his testimony is “material” and it would be “impracticable” to secure his presence at trial — think of a star witness who flees on the eve of testifying against a mob boss. Authorities have used this tool to detain suspected terrorists. Jose Padilla was held on a material-witness warrant for a month before he was transferred to military custody.
This approach permits more thorough interrogation than Quarles; Tsarnaev needn’t have been charged a mere two days after he was captured. It’s also available for lone wolves, not just al-Qaeda members.
Plus, the fact that there’s judicial oversight can help prevent abuses; suspects may be held only with a court’s permission, not on the government’s say-so. Another way to allay civil-liberties concerns is to bar a suspect’s statements from being used against him in court if he’s later charged. That may be the price of allowing interrogation to prevent future attacks.
Yet the material-witness statute isn’t a perfect fit. Its purpose is to preserve evidence for trial, not to facilitate questioning before trial. Also, the law was designed for people who have evidence about crimes committed by others, not those who themselves are under investigation. Congress could fix these problems by crafting a new statute specifically addressing how to interrogate suspected terrorists in circumstances where the conventional law-enforcement and military approaches are inadequate.
More than a decade after 9/11, the terrorist threat continues to evolve, and the law must adapt along with it. In the future, we’ll probably see more one-off strikes by freelance terrorists like the Tsarnaev brothers than attacks by centralized groups like al-Qaeda. That’s why we need a durable legal framework for interrogation, one that doesn’t require us to treat terrorists as ordinary criminals or enemy combatants.
— Nathan A. Sales is a law professor at George Mason University. He served in the George W. Bush administration at the Justice Department and as deputy assistant secretary of homeland security for policy.