The arrest of Times Square car bomb suspect Faisal Shahzad early Tuesday morning bared a clear fault line among Washington lawmakers over the proper role of the famous Miranda
warning in cases involving terror suspects.
Several prominent Republican lawmakers, including Sen. John McCain (R-Ariz.), quickly criticized
the Obama administration for allowing its law enforcement officials to read Shahzad his rights while the scope of the attempted attack remained unknown. When it turned out that Shahzad was a U.S. citizen, and thus least likely to be deprived of constitutional rights, Sen. Joseph Lieberman (I-Conn.) took an even more remarkable position
. He suggested that U.S. citizens accused of terror crimes should have their American citizenship revoked so that they may not rely upon broader protections against self-incrimination.
In the meantime, Rep Steny Hoyer (D-Md.) endorsed
the Justice Department's handling of the Miranda issue in the Shahzad case. "Nothing says that we can't convict and give appropriate punishment to people just because we give them Miranda rights under the Constitution," Hoyer said. "As I understand it, he was availed of the same rights that any other citizen would be given." The House majority leader then went on to cite Glenn Beck, of all people, in making his case that U.S. citizens deserve the full expanse of their constitutional rights.
The debate over Mirandizing
terror suspects, even American citizens accused of terror-related crimes, has lingered for years as an undertow to more general issues involving the federal approach to terror law cases. But it roiled anew
a few months ago during the saga of Umar Farouk Abdulmutallab, the so-called Christmas Day bomber, who is suspected of trying to blow up Northwest Airlines Flight 253. Evidently, Abdulmutallab stopped cooperating
with the feds once he was warned that he had a right to remain silent. This enraged conservatives and other critics of the Obama administration who perceived the use of the warning as a sign of softness in the war on terror.
What none of these critics seem to understand is that the notice requirements contained in the Supreme Court's memorable 1966 Miranda decision
neither preclude the questioning of a suspect nor are particularly effective in convincing suspects that they ought to stay quiet. Indeed, we now know that Shahzad was cooperating with officials both before
he was Mirandized
as well. Just because a suspect is told he has a right to remain silent, in other words, doesn't mean he will be. Indeed, over and over again, we have seen terror suspects since 9/11 only too happy to spill the beans. For example, the feds couldn't get al-Qaeda stoolie Zacarias Moussaoui to shut up.
Federal officials questioned Shahzad on Tuesday morning before reading him his rights under a "public safety" exception to the constitutional rule. Once the feds realized there was no imminent, active threat posed by Shahzad, they altered course, read him his rights, and then began questioning again with an eye toward future litigation in a federal civilian court. Whatever Shahzad told his interviewers after he was read his rights is fair game at his trial -- just like it is in thousands of cases around the country every month. Whatever he said before he was Mirandized
is a little less likely to be allowed into court at trial. Seems to me that officials got to have their cake and eat it, too; got to satisfy their national security concerns pre-Miranda and then help their legal case post-warning. Why again is McCain unhappy about that?
The critical point is that the government may not necessarily need to use Shahzad's statements against him at trial. Prosecutors win plenty of cases without relying upon a confession or other incriminating statement made by the defendant. Indeed, tens of thousands of criminal defendants are convicted each year based upon circumstantial evidence or direct evidence that doesn't come out of the mouth of the suspect. Just think about what we now know about the Shahzad story. The feds didn't arrest him on a whim, hoping to pick his brain about the attempted car bomb attack in Times Square. This was no fishing expedition; they had a case against him before
he was arrested and questioned. That case survives, Miranda
warning or no.
There are plenty of terror suspects, like Abdulmutallab for example, who are not U.S. citizens and who thus don't have the full range of constitutional protections available under the law. Rightly or wrongly, legally or not, the Obama administration has decided to keep most Bush-era interrogation options for those people. But the Shahzad case is different. He's a naturalized American -- like tens of millions of others here. He really did
have the right to remain silent -- just like you or I would. That's not something to criticize or seek to change. That's something to cherish and be proud of.