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Shahzad Arrest Ignites Liberties Debate

Interviewee: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy, Associate Professor of Law at Columbia Law School
Interviewer: Bernard Gwertzman, Consulting Editor, CFR.org
May 7, 2010

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The arrest of Faisal Shahzad for the Times Square bomb plot has triggered a new round of debate about civil liberties and terror suspects. Attorney General Eric Holder has been fielding questions and criticisms about when and whether Shahzad, a Pakistan-born American citizen, should have been informed of his Miranda rights to remain silent--he was read his rights, but not immediately. These questions are likely to gain traction in the weeks ahead, says Matthew C. Waxman, who served as a Pentagon advisor on detainees from 2004-2005. It would be wrong, says Waxman, to treat all captured terrorists as enemy combatants subject to military trial. He adds that he believes Shahzad should be tried in Federal Criminal Court, and that some new proposals would "distort domestic and international laws in dangerous ways."

There have been are questions about whether or not the Times Square bomb suspect Faisal Shahzad should have been read the Miranda rights after his arrest. How would you describe this situation in legal terms?

One of the things this case helps highlight is that there is no single monolithic terrorism threat. Instead we face threats from al-Qaeda, from loosely affiliated terrorist groups, from totally independent militant groups and even single individuals at home and abroad. They have different capabilities and aims, but they also pose different legal and policy challenges. One of the big controversies surrounding this case, as well as that of the Nigerian, Umar Farouk Abdulmutallab, who tried to set off a bomb as his plane was landing in Detroit on Christmas Day, has to do with interrogating terrorism suspects captured on U.S. soil. And there are really two issues here. One is legal: What are the legal rights to which a suspect is entitled, how and when will he be informed of them? This goes to the Miranda question. The second issue is more operational: Which government agencies will be called in to handle the questioning, who will oversee it, and what other security machinery will kick in when there is an incident.

First give a little background on Miranda.

Miranda, as most of us know from watching cop shows on TV, is about informing a criminal suspect of his right to an attorney and right to remain silent. There's some tension between the desire to inform a suspect of those rights and the security imperative in terrorism investigations of collecting as much information as possible as quickly as possible about additional impending terrorist attacks. So one possible way of squaring those two concerns is perhaps to postpone the reading of Miranda rights under what's termed the "public safety exception," as a rule.

There is an appropriate role for military commissions in combating some terrorist threats, but based on the facts that I've seen so far in this case, this is not one of them.

What is the "public safety exception"?

The exception says that police or government officials may be able to question a criminal suspect without reading those Miranda rights when there are imperative public safety concerns that require the police or investigators to learn information quickly in order to deal with an imminent security threat.

This is written into the law?

This comes from a prior Supreme Court case called New York v. Quarles. This had nothing to do with terrorism, but could be extended to cover circumstances like the capture of a suspected terrorist.

So that answers why the authorities didn't read him his rights immediately after his capture?

Correct. One thing that the Obama administration has also been working on is improvement in interagency coordination with regard to questioning and interrogating terrorism suspects. There's a premium not only on quickly getting from a subject information that might be relevant to impending plots, but also bringing into the situation experts throughout the intelligence community who might be able to assist in that interrogation or piece together information immediately that comes from that questioning.

Do we know yet who did the Shahzad questioning?

I don't know. I assume it was the FBI and law enforcement officials. And the Obama administration has decided that new interagency high-level interrogation teams are going to fall under the FBI's oversight.

Some Senators like Republican John McCain and Independent Joe Lieberman have been saying they shouldn't even bother with Miranda rights in terrorism cases.

Another big controversy surrounding the Shahzad case concerns specifically the treatment of U.S. citizens. Some politicians want to declare that anybody captured on terrorism charges, including U.S. citizens, should be treated as an enemy combatant and subjected to military trial. Some of these new proposals not only are unnecessary, but they would distort domestic and international laws in dangerous ways.

Since Shahzad is a naturalized American citizen, in your mind there really should be no question but that he should be tried in a regular U.S. civilian court?

There is an appropriate role for military commissions in combating some terrorist threats, but based on the facts that I've seen so far in this case, this is not one of them. This suspect should be tried in Federal Criminal Court, and if the Times Square episode had occurred during the Bush administration I think they would have come to that conclusion as well.

Late last year you said the Obama administration was straddling the debate between civilian trials and military commissions. At that time it looked as though Khalid Sheikh Mohammed, a leader of the 9/11 attacks, would be brought to trial in New York while the other terrorists were going to go before a military commission. Now it's up in the air where Khalid Sheikh Mohammed is going to be tried, right?

That's exactly right. At this point it's hard to see any option that's going to command broad political consensus. Prosecutions in federal court are viable for many Guantanamo detainees, including Khalid Sheikh Mohammed, but the political and financial costs of going that route are now immensely high. And this recent Times Square bombing attempt, while not directly relevant to those Guantanamo cases, is probably likely to enflame anxieties among those who oppose bringing Guantanamo detainees to trial here in New York.

The status of Guantanamo is that nothing is going to happen until after the fall elections. Is that correct?

Domestic terrorism cases like that of Shahzad are going to stir up new civil liberties controversies that were largely overshadowed in previous years by bigger controversies over detention, interrogation, and eavesdropping.

I think that's right. Numerically speaking, the Obama administration has made some progress toward closing it by transferring and releasing detainees abroad, but legislatively and politically they're stuck. If anything, they've been losing ground as a result of congressional restrictions on their ability to prosecute or transfer detainees into the United States. The politics are such that at least for now the statutory and political hurdles to closing Guantanamo are just too high and the administration is likely to revisit that issue in a serious way only after the congressional elections.

I would like to add that on the issue of Guantanamo, too much of the public focus has been on the question of whether Guantanamo will be closed and where detainees would be held instead. I think the much bigger and more difficult question is not where they're going to be held, but to what legal process they are entitled. I think that's the more significant question, and it's a question that the Obama administration internally has not yet answered.

Explain that in layman terms.

At one end of the debate are those who would say, "If any of the Guantanamo detainees are going to be held long term, they need to be given the full rights to a criminal trial including having charges proven to a jury beyond reasonable doubt." At the other end of the debate are those who say, "We're in an ongoing war with al-Qaeda; these are enemy fighters who can be held without any trial at all, subject now only to some limited review by federal court under the writ of habeas corpus." In the middle, one might construct a set of rules and procedures that would review periodically the grounds for detention and the continuing dangerousness of a particular detainee.

Are there civil liberties concerns over the arrest and questioning of suspects like Shahzad?

Domestic  terrorism cases like that of Shahzad are going to stir up new civil liberties controversies that were largely overshadowed in previous years by bigger controversies over detention, interrogation, and eavesdropping. One of those controversies has to do with privacy and information collection, including greater use of technologies like video surveillance, license plate readers, and other monitoring technology. Another controversy has to do with the retention and analysis of that data. Once the government has that data, what can it do with that? I think these information-sharing and analysis questions remain big challenges. How do we share the right information with the right people, who can then make sense of it and take appropriate action. With the Christmas bombing for example, we seem to have a case where information dots were not adequately connected beforehand [he was not put on a no-fly list and should not have had his U.S. visas renewed]. In the Times Square bombing, we seem to have a case where information distributed afterwards to airlines was nearly not acted upon.

For instance, a lot was made right after the Times Square bombing attempt of video that some civilian had shot of a person near the car bomb. It turned out not to be Shahzad. But there are video cameras all over Times Square, which the city seems wants to increase. Do these raise civil liberties questions?

I think it depends a lot on where one draws the line between security and privacy. As a legal matter, much of this turns on what kinds of reasonable expectations to privacy citizens have. I do think that terrorism poses some new challenges to where and how we strike that balance. New technologies on the one hand give the government greater capability to collect and analyze information but they also potentially pose some new dangers to civil liberties. I think this is a debate that we're going to continue to have for some time, and it's a debate that many of our fellow democracies abroad have also been confronting over recent years as they deal with domestic terrorism threats.

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