Boston bombing suspect charged, will not be treated as enemy combatant

The White House said Monday that the surviving suspect in the Boston Marathon bombing will not be treated as an enemy combatant, drawing a rebuke from Republican lawmakers who wanted the administration to consider that option for the sake of intelligence gathering.

The announcement came as a federal complaint was filed against suspect Dzhokhar Tsarnaev. Fox News has learned that the suspect made an initial appearance in front of a federal magistrate judge at the hospital where he still is being treated. Fox News also confirmed he was advised of his Miranda rights. No plea was entered.

The complaint charged Tsarnaev with using a weapon of mass destruction at the marathon one week ago, an attack that killed three people and injured more than 200. The document authorized the death penalty or life imprisonment to be sought.

"Although our investigation is ongoing, today's charges bring a successful end to a tragic week for the city of Boston, and for our country," Attorney General Eric Holder said in a written statement.

As the complaint was filed, White House Press Secretary Jay Carney made clear that the suspect would go through the civilian court system and would not be handled as a combatant.

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"He will not be treated as an enemy combatant," Carney said. "We will prosecute this terrorist through our civilian system of justice."

Carney stressed that the civilian system has been used to try, convict and incarcerate "hundreds of terrorists" since the 9/11 attacks, including the Times Square attempted bomber. "The system has repeatedly proved that it can successfully handle the threats we continue to face," he said.

Carney noted U.S. citizens -- like Tsarnaev -- cannot be tried in military commissions under U.S. law.

Republican Sen. Lindsey Graham and other lawmakers, though, were not suggesting he be tried before a military commission. Graham, rather, was suggesting that the administration label him an "enemy combatant" for purposes of intelligence gathering. He said Monday afternoon that he "strongly" disagrees with the administration's decision to rule out that possibility.

"I believe such a decision is premature, it is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war," Graham said.

He said information gathered under enemy combatant status would never be used in a court of law, but he added, "The last thing we should do is limit our ability to gather intelligence."

Graham earlier conceded it's not yet clear whether he could qualify as a combatant -- to do so, the government would need to prove he was linked to Al Qaeda or an Al Qaeda-linked group.

Cully Stimson, a former federal prosecutor and deputy secretary of defense for detainee affairs, says that is a big problem, and designating him an enemy combatant while knowing he is not one could actually hurt the prosecution’s case in federal court.

“That is a terrible idea,” Stimson said in an interview with Fox News. “(Graham) is saying, let’s violate the law and let the judge tells us that.”

Stimson says the judge could punish the prosecution at the end of the day, possibly reducing the sentence or eliminating the death penalty for a “willful and brazen violation of the law.” There are well known instances of enemy combatants at Gitmo being given lesser sentences in federal court because of the prosecution’s overreach, Stimson says. Furthermore, he said, it could weaken future cases involving enemy combatants by willfully misusing the designation.

Officials have cited a public safety exemption in declining to read Tsarnaev his Miranda rights initially. But that exemption only lasts for 48 hours, and Graham had suggested President Obama consider designating him a combatant while they interrogate him for up to roughly 30 days.

Republican New York Rep. Peter King, among the first to call for Tsarnaev to be handled as a potential enemy combatant, stood by that position on "Fox News Sunday." He, too, agreed that the suspect could be tried and convicted in federal court.

"He's going to be convicted," King said. "I'm not worried about a conviction. I want the intelligence."

The complaint released Monday meticulously detailed how the suspects came to the attention of law enforcement. The document says that Dzhokhar Tsarnaev could be seen in surveillance footage lifting his cell phone to his ear 30 seconds before the first explosion. As others stared at the blast "in apparent bewilderment and alarm," the document says, the suspect "appears calm."

The document said the FBI later seized "a large pyrotechnic" from his room, as well as a jacket and hat similar to those worn by the bomber in the footage.

The complaint also claimed the two alleged bombers were the ones who carjacked an individual on April 18. According to the document, one of the carjackers pointed a gun at the victim and said, "Did you hear about the Boston explosion? ... I did that."

"The man removed the magazine from his gun and showed the victim that it had a bullet in it, and then re-inserted the magazine. The man then stated, 'I am serious,'" the complaint said.

The suspect, meanwhile, reportedly has been communicating in writing. Federal investigators also want to speak with the widow of the elder brother, Tamerlan, according to her attorney. Lawyer Amato DeLuca told The Associated Press that, after investigators went to her Rhode Island home Sunday, the widow did not speak with them.

"We're deciding what we want to do and how we want to approach this," she said.