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When asked if he would recommend Boston Marathon bombing suspect Dzhokhar Tsarnaev be tried as an enemy combatant, former attorney general under the Bush administration John Ashcroft replied, "Yes, the answer to that question is yes."
The White House said Monday that Tsarnaev would not be tried as an enemy combatant.
But there are precedents for holding U.S. residents or citizens as enemy combatants if they are part of an enemy operation against the U.S., said Ashcroft. It is possible that there could be separate adjudications by state, federal, and military authorities in the case of Dzhokhar Tsarnaev. The state violations have been widely photographed and documented - the bombing of the Boston Marathon; the federal violations include the Thursday evening carjacking, when the Tsarnaev brothers allegedly bragged to the carjacking victim that they detonated the bombs; and the military violations would have been possible if Tsarnaev had been found to be involved with the war against the United States by terrorists overseas - then he might have been tried as an enemy combatant.
The White House said that Tsarnaev will be prosecuted through the U.S. civilian system of justice, where the administration has had success in the past.
"Since 9/11 we have used the federal court system to convict and incarcerate hundreds of terrorists," White House press secretary Jay Carney said Monday.
Tsarnaev will be charged with one count of using and conspiring to use a weapon of mass destruction against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death. If convicted, Tsarnaev could face the death penalty.
"Fortunately there is a mountain of evidence that would support a state charge, or a federal charge," said Ashcroft.
Ashcroft served as U.S. Attorney General from 2001 through 2005. Under his tenure, he said the U.S. tried to increase communications between the U.S. and foreign countries regarding terrorist threats. Still, intelligence sources tell CNN that it was "rare" for Russia to reach out and ask the FBI to investigate someone as they did with Tamerlan Tsarnaev, the older Boston Marathon bombing suspect, in 2011.
"Whenever we get such communications, I think we want to take them very seriously," said Ashcroft.
The FBI interviewed Tsarnaev in 2011, and said it found no terrorism activity at the time. But it appears the bureau did not follow up after Tamerlan Tsarnaev spent six months in Chechnya and Dagestan in 2012.
"I would be particularly concerned about someone who visited an area like Chechnya," said Ashcroft, "especially in the light of the fact that Chechen individuals have been involved in the war on terror pretty regularly against the United States and its operations overseas."
The FBI could have pursued a Foreign Intelligence Surveillance Act, or FISA, warrant against Tamerlan Tsarnaev. Under that act, individuals can be watched if they are either foreign powers or agents of a foreign power.
"What we do know is that we will want to improve our performance; whether there were things that should have been done differently, I don't know," said Ashcroft. "But anytime we have a situation like this, we should take a careful look to see if there are ways that we could improve our performance. "
"If we had been able to intercept or interdict this operation at any point in the process, lives could have been saved," added Ashcroft.