Max Fisher at The Atlantic:
Naturalized American citizen Faisal Shahzad, arrested late last night for the failed car bomb in Times Square, is in U.S. custody. Should he be read his Miranda rights? The question has a complicated recent history in U.S. policy.
In December, the Nigerian Umar Farouk Abdulmutallab was Mirandized after his failed attempt to blow up a U.S. flight, which provoked outrage among some Republican legislators. Critics insisted that the Miranda reading made Abdulmutallab less likely to share intelligence, although administration officials say he continued speaking openly. The current rift among some conservatives over Shahzad’s Miranda rights reveals a tension within the party between two core issues: Civil liberties, which is emphasized by those saying Shahzad’s rights as a citizen must be respected, and national security, which some Republicans say is better served by not Mirandizing.
Conservatives For Mirandizing
Glenn Beck: Read Him His Rights On Fox & Friends, Glenn Beck said, “He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens.” Fox New’s Brian Kilmeade pushed back, calling Shahzad “a threat to the country.” Beck sighed, “So are a lot of citizens. If you’re a citizen, you obey the law and follow the Constitution. He has all the rights, under the Constitution.” He added, “We don’t shred the Constitution when it’s popular. We do the right thing.” Kilmeade suggested that Beck’s approach could risk the lives of his family.
- Sen. John McCain: ‘Serious Mistake’ Appearing on the radio show Imus In The Morning, McCain warned, “Obviously that would be a serious mistake…at least until we find out as much information we have. … Don’t give this guy his Miranda rights until we find out what it’s all about.”
- Rep. Peter King: Should Have Talked to Intelligence Community First The New York Republican worries, “Did they Mirandize him? I know he’s an American citizen but still. … I hope that if they did read him his rights and if they are going for an indictment as opposed to a tribunal that he did discuss it with the Director of National Intelligence, the Central Intelligence Agency, all the component parts of the intelligence community.”
- Sen. Joe Lieberman: Remove His Citizenship Appearing on Fox News, the Connecticut Independent suggested a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their U.S. citizenship, which would presumable include their Miranda rights. He asked “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.”
John McCain, who might have been elected President last year, thinks that according American citizens their constitutional rights is a “terrible mistake.” Presumably he still thinks so despite the fact that Faisal Sharad, after being given the Miranda warnings, promptly spilled his guts. Not merely did he confess, he apparently gave up the names of at least eight associates who have now been arrested by Pakistani police.
The fervent desire on the extreme right wing – which is to say, at the center of the Republican Party – to allow terrorists to bluff us out of our way of life ought to seem puzzling. The world is full of third-world dictatorships where the secret police get to hold enemies of the state incommunicado and torture them. I have no desire to live in such a place. If John McCain’s tastes are different, no doubt Saudi Arabia would be delighted to have him as a subject.
Look, I know McCain’s in a tough primary and has to prove himself to the far-right, but this Miranda-related demagoguery is growing stale.
Najibullah Zazi was Mirandized, and the entire case went beautifully. Umar Farouk Abdulmutallab was Mirandized, and the results have been excellent. When shoe bomber Richard Reid was taken into custody, the Bush/Cheney administration read him his rights five minutes after he was taken off the plane he tried to blow up, and McCain never said a word. It’s been standard practice, especially with American citizens upon their arrest, for years — spanning administrations of both parties.
Can’t McCain just let the grown-ups do what they do without offering suggestions from the peanut gallery? The Joint Terrorism Task Force caught the suspect 48 hours after the attempted bombing; the frequently-confused Arizonan should probably trust them to know how best to proceed.
“I hope that [Attorney General Eric] Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still,” King told POLITICO.
“I know he’s and American citizen, but still” really says it all, doesn’t it?
Half our political leadership wants a banana Republic, and our media is just treating it like it is another opinion. At what point do we start calling these people what they are?
And I just don’ know what to say about the obviously insane John McCain. You would think that someone who spent half a decade in a cage with no rights whatsoever in the defense of this nation and our laws and legal tradition and way of life, would have the slightest bit of respect for the rule of law. You would, of course, be wrong.
Moe Lane at Redstate:
Anyway, this isn’t a case of a non-citizen captured overseas as an illegal combatant, or even one of a non-citizen captured here: there are existing Constitutional mechanisms in place. Including this one:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Of course, that assumes that this administration will seek to have this man charged and tried with what is unambiguously a capital crime. I leave it to the reader to contemplate the implications of a refusal to do so.
Shahzad is an American citizen, arrested by law enforcement in America. As a US citizen, Shahzad has the right to remain silent. In that sense, he differs from the EunuchBomber, who attempted to enter the country (our airspace) to conduct a sabotage mission for an enemy of the US. Ambdulmuttalab should have immediately been taken into custody by military and intelligence agencies, not the FBI, in order to make his status as an enemy combatant clear.
First of all, it is never a “mistake” to follow the law. Mr Shahzad is an American citizen, and even if he had murdered thousands, he would still be entitled to the protections guaranteed under our Constitution.
And yet, this is one instance where the “ticking bomb” scenario might very well be a reality. Newsweek reports there may be a connection between Shahzad and the Pakistani Taliban leader Hakimullah Mehsud:
A prominent expert on Jihadist media says there is an apparent link between the new video message in which Pakistani Taliban leader Hakimullah Mehsud, once thought to have been killed, proclaims he is still alive, and a message posted overnight Saturday in which the Pakistani Taliban appears to claim credit for the failed Times Square car bomb attack.
Rita Katz, founder of the Site Intelligence Group, a private organization that monitors and translates extremist Web postings, late on Monday outlined a timeline her organization put together that suggests that the Hakimullah video and the U.S. attack claim were both posted, at least on some sites, by the same person or persons.
Terrorists are notoriously full of bombast but just for the record, Meshud made some bloodthirsty threats toward America in his latest video:
In the videos, Hakimullah Mehsud vows attacks on U.S. cities, which he says his suicide bombers have penetrated. The videos provide the first solid evidence that he survived the missile strike, and they come after the Pakistani Taliban’s widely dismissed claim of responsibility for the failed attack in New York’s Times Square. In that case, authorities were zeroing in on a naturalized U.S. citizen from Pakistan. A suspect was arrested late Monday, though reports of his ties to extremist groups in Pakistan could not be substantiated.
Might there be other terrorists in other major American cities waiting to strike as I write this? And would that be a good enough excuse for the government to arbitrarily waive Mr. Shahzad’s Constitutional rights, designate him an “enemy combatant,” and interrogate him using all legal means at our disposal (I take it as a given that President Obama has rejected “enhanced interrogation” as an option)?
For some on both sides of the argument, this is an easy question to answer in the affirmative or negative. However, knee jerk ideological reactions from civil liberties absolutists or bloodthirsty right wingers are just not good enough in this situation.
The threat is real and immediate. Hundreds – perhaps thousands – of American lives may be at stake. Wouldn’t it be easier just to forget the Constitution in this one instance and treat this terrorist as the enemy he himself claims to be?
It would be easier. But would it be the right thing to do? I daresay if there is another terrorist attack – this one successful – and we followed the law to the letter by allowing the suspect to remain silent despite the fact that it is later revealed he could have given us information that would have stopped the attack, the political ramifications would be severe. And the fact that our police obeyed the Constitution would give cold comfort to the families of those who lost a loved on in a preventable attack.
It’s an easy choice – unless you lose someone because of that choice. Then it becomes a little more complicated, yes? Or, on the other side of the coin, if Mr. Shahzad knows nothing of any other attacks and precious little about his overseas connections, violating his constitutional rights would be seen as dramatic overkill. The law would have been violated for, what in retrospect, would be seen as no good reason.
You might argue that postulating outcomes is a fool’s game and that holding fast to Constitutional principles or making the exception in Shahzad’s case is a decision for the moment and no thought should be given to relative consequences. I disagree. This decision would be all about “relevant consequences.” If we violate the suspect’s Constitutional rights and the information we are able to wean out of him prevents an attack, is that justification for tossing the Constitution aside? Or if he has no information relevant to accomplices or other plots, must we automatically assume that what was done was a travesty?
Herein lies the conundrum over Mirandizing Shahzad. Whether we do or don’t, our actions will have profound consequences. Even if no other terrorist attacks are being planned, finding that out is almost as important as discovering another plot to kill Americans. And as with any other decisions made by policymakers, the potential harm must be weighed against any positive outcome to their actions.
First off, we can’t designate American citizens as “enemy combatants.” The Supreme Court has made that quite clear, in case it wasn’t absolutely obvious upon reading the Bill of Rights. Second, while the Constitution isn’t a suicide pact, it is supposed to limit government’s powers over its citizens. Rule of law and all that. Third, lest we forget, Shahzad is merely accused of a crime. The government not infrequently accuses the wrong people. Even, it turns out, for terrorism.
Now, I suppose, if the president or the attorney general felt strongly enough about the matter, they could order their subordinates to flout the law. But that would mean that Shahzad would be much harder to jail. And it would mean possible criminal charges against those ordering the unconstitutional acts and those carrying out those unlawful orders.
But let’s be clear: Just as I didn’t trust President Bush, for whom I voted twice, to decide when to deprive citizens of their rights, I don’t trust his successor. And neither should you. That is, after all, the very definition of absolute power. And we all know what that does.
UPDATE: John McCormack at The Weekly Standard
Marc Thiessen at The American Enterprise Institute
Conor Friedersdorf on Thiessen
UPDATE #2: Orin Kerr
UPDATE #3: Ramesh Ponnuru at The Corner
Andy McCarthy at The Corner
More Ponnuru at The Corner