Published: Apr 20, 2013 6:13 PM EDT
Updated: Apr 20, 2013 8:47 PM EDT

FORT MYERS, Fla. - With Dzhokar Tsarnaev taken into custody, the focus now turns to how the Obama Administration is going to bring him to justice.

One controversial decision has already been made, when he wasn't read his miranda rights. Those are the rights to remain silent and the right to have an attorney present during questioning.

Debate immediately broke out after the news. Republican Senators Lindsey Graham and John McCain released a joint statement saying, "now that the suspect is in custody, the last thing we should want is for him to remain silent."

The two Senators argue the suspect should be held as an enemy combatant.

The Obama Administration is invoking a public safety exception. Which means the suspect won't be read his rights and won't have a lawyer with him while he's questioned by investigators. Any statements Tsarnaev makes can be used against him in court. Though Joe Viacava, a partner at the Wilbur Smith Law Firm, argues that by not reading the miranda rights, the justice department is giving ammo to the defense.

"Why even give the defense a chance to make this argument in the first place, and if he's willing to speak to you, read him miranda. So there's really no practical reason not to do it," Viacava says.

The miranda warning comes from a 1966 case where the Supreme Court held that if prosecutors want to use statements made by defendants, then miranda rights must be read.

"To not read him miranda is a complete mistake," says Viacava.

There is a possibility this whole debate is a moot point. We know that Tsarnaev is in the hospital, if his injuries prevent him from being questioned during the weekend, then a judge will read him his rights on Monday.