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For now, the government is invoking the public safety exception, a designation that allows investigators to question Tsarnaev without reading him his Miranda rights, a Justice Department official told CNN on condition of anonymity.
In ordinary cases, a suspect is told by police he has the right to remain silent and he has the right to a lawyer.
But this is not an ordinary case, say U.S. Sens. John McCain and Lindsey Graham.
They urged that Tsarnaev be held as an enemy combatant, a designation that allows a suspect to be questioned without a lawyer and without being Mirandized.
"Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes," the senators said. "Under the law of war we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel."
Alan Dershowitz, a prominent defense attorney and Harvard law professor, scoffed at the senators' statement.
"Impossible. There's no way an American citizen committing a domestic crime in the city of Boston could be tried as an enemy combatant," he told CNN's Piers Morgan. "It could never happen. And that shows absolute ignorance of the law."
Dershowitz also said statements made by police in Boston seems to contradict the government's reasons for invoking the public safety exception.
"The police have said there's no public safety issue, it's solved, it's over," said Dershowitz. "There are no further threats. But the FBI is saying there's enough further threats to justify an exception."
Former New York Mayor Rudy Giuliani said the federal government may have known about international threats that state officials were not aware of.
"You would have to know the internals of what they have before you can assess whether there is a sensible invocation or not," Giuliani said.