The bizarre criticism of the Faisal Shahzad interrogation.

The law, lawyers, and the court.
May 5 2010 4:24 PM

Miranda Worked!

The bizarre criticism of the Faisal Shahzad interrogation.

Faisal Shahzad. Click image to expand.
Faisal Shahzad

The case of Faisal Shahzad, the Times Square bombing suspect, is a spectacularly bad test case for arguing against the Miranda warning. But don't take my word for it. Listen to Glenn Beck, suddenly turned constitutional scholar: "We do not shred the Constitution when it's popular. We do the right thing," he said. Also, "How is it that saying a citizen should have their rights read to them … is controversial?"

This is always the correct position—and it's especially so in the Shahzad case. Miranda worked! Law enforcement officials can invoke a public safety exception and delay reading a suspect his rights to get information that would save lives. In Shahzad's case, the FBI invoked the public safety exception. The agency called in its crack interrogation team, asked Shahzad questions with no Miranda warning, and reaped what the FBI says was "valuable intelligence and evidence." Then Shahzad was read his rights. And lo and behold, he waived them and kept talking.

But none of this has stopped Sens. John McCain, who once sponsored laws to prevent torture, and Christopher Bond, the ranking Republican on the Senate intelligence committee, from railing against Miranda. "We've got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States," Bond said. "When we detain terrorism suspects, our top priority should be finding out what intelligence they have that could prevent future attacks and save American lives," McCain said. "Our priority should not be telling them they have a right to remain silent."

By all accounts, however, the FBI did have its priorities—and McCain's and Bond's—in order. It invoked the public safety exception. The facts don't line up at all well with the senators' reflexive tough-guy posturing. And yet the Republicans have to posture anyway. And the Washington Post editorial page (isn't it supposed to be calmer and wiser?) has to join them, asking: "How long was Mr. Shahzad questioned before he was read his Miranda rights? And what triggered the Justice Department's decision to suspend the 'ticking time bomb' exception in case law that gives law enforcement officers an opportunity to gather information before advising a suspect of his right to remain silent?"

What is the Post talking about? Or was the editorial board so eager to pounce on the Obama administration for its handling of the case that it didn't even read its own newspaper? Is this a problem of different deadlines? Good grief. The Post editorial also criticizes the administration for not saying whether the FBI used the crack interrogation team (called the High Value Interrogation Group) on Shahzad. But the administration did say so, and the answer is yes.

Of course, after he was read his rights, Shahzad could have chosen to shut up. The Christmas Day bomber, Umar Farouk Abdulmutallab, asked for a lawyer and stopped providing information after he was Mirandized. But that time, too, interrogators got good stuff first—because that time, too, they used the public safety exception.

One person to thank for that is former FBI special agent Coleen Rowley. After the FBI bobbled the interrogation of Zacarias Moussaoui in 2002, Rowley wrote a memo pleading that "if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles 'public safety' exception to Miranda's 5th Amendment requirements." (There is more on Rowley's memo here from Stuart Taylor Jr.)

Quarles is New York v. Quarles, the 1984 Supreme Court case that carved out the public safety exception to immediately reading a suspect his rights. The court said the police were justified in waiting so that they could first ask a suspect in a rape where his gun was. (They knew about the gun from the rape victim and because he was wearing an empty holster.) Rowley has weighed in about the Shahzad interrogation on Huffington Post, and she's happy. (OK, she's practically gloating: "I wanted to shout 'I told you so!' " she writes.)

Another senator who has been unhinged by the Shahzad case is Sen. Joseph Lieberman, who has called for legislation to strip the citizenship rights of Americans, like Shahzad, who are suspected of terrorism. On Fox News, his favorite place, Lieberman talked about expanding the law that takes away U.S. citizenship from people who fight for enemy countries. "It's time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act," he said.

Stripping people of citizenship automatically when they are charged? Sorry for the italics, but really? Not convicted, even—just accused?

This is still a pretty extreme view, or so I would like to think. When Jose Padilla was arrested in 2001 for his part in a supposed "dirty bomb" plot, which then-Attorney General John Ashcroft and the Bush Department of Justice later downgraded at least twice to a relatively small-fry conspiracy, the Supreme Court was asked whether Padilla could be detained indefinitely, despite his American citizenship. Padilla by then had been held for two years as an "enemy combatant" at a military brig in South Carolina, without being charged or tried. The Supreme Court punted on a technicality.

Before Padilla's case could make it back up the ladder, the Bush administration tried him as a citizen in civilian court. Padilla was convicted—because in fact the system is good at prosecuting homegrown terrorists. The Supreme Court never answered the radioactive question of whether an American citizen suspected of terrorism can be detained indefinitely without charges, because the government didn't demand an answer. And in the case of Faisal Shahzad, the federal government had all the tools it needed to catch him, get information from him, and send him to prison for the rest of his life, if he's guilty. We can have all that—and Miranda, too.

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