While critics Wednesday questioned the government’s decision to inform the Times Square car bomb suspect of his constitutional right to remain silent, FBI officials said that it was the proper way to ensure that criminal charges against him would not be undermined.
Faisal Shahzad was arrested late Monday night and soon began talking to FBI investigators. At some point hours later, he was notified of his Miranda rights, including his right to remain silent and his right to an attorney. He kept cooperating.
Some Republicans have suggested that Shahzad, an American citizen, should not have been treated as a traditional criminal suspect, but instead questioned for an indefinite period as an “enemy combatant.” Moreover, some legal experts say that agents weren’t required to inform Shahzad of his rights at all if they determined that securing intelligence about potential terrorism plots was more important than being able to use his self-incriminating statements in court.
The debate has highlighted a fundamental structural issue in America’s anti-terrorism framework: There is no other way to prosecute a citizen arrested here for terror-related offenses than through the criminal system. A law passed by Congress in 2006 bars trials for citizens by a military commission, which left federal charges as the only option. That means investigators were looking to build as strong a case against Shahzad as possible.
FBI agents were able to question Shahzad for hours before informing him of his rights because of something known as the “public safety exception” to the Supreme Court-mandated Miranda rule, which allows agents to postpone the warning when there is a clear and present danger to the public and they believe the suspect has information that can end the emergency. In that time, the Justice Department said, Shahzad provided important information.
A senior FBI official said Wednesday that the agents talked to Shahzad for about three or four hours under the exception beginning late Monday night and into the early hours of Tuesday. They then decided to read him his Miranda rights. At that point, the officials said, Shahzad continued to talk despite the warning.
The source, who asked not to be identified because the case is still active, added, “You have to make a decision on a case-by-case basis. Have you accomplished the public safety component? And you also have to make determinations on whether he’s talking or not talking. So there is no hard-and-fast rule. But it has to be reasonable. You can’t utilize it indefinitely.”
Still, investigators were not compelled to read Shahzad his rights.
“Miranda is not a constitutional requirement, like giving someone a lawyer,” said Paul Cassell, a University of Utah law professor and former federal judge. “People who grew up watching cop shows on TV think it is more than that, but it’s not.”
The Supreme Court held in 2004 that law enforcement officers are not constitutionally required to issue Miranda warnings. The risk, however, is that incriminating statements, such as a confession, are not later admissible, potentially weakening the government’s case.
Sen. John Cornyn (R-Tex.) said Wednesday that investigators “got lucky” that Shahzad kept talking and that he should have been treated as an enemy combatant.
An aide to Cornyn said that the government should have taken the time to extract every useful bit of information about Shahzad’s time training in a Waziristan, Pakistan, terror camp before risking the chance that he would go silent after being informed of his rights.
But not all conservatives felt the same way. Appearing on the Fox News Channel on Wednesday morning, commentator Glenn Beck defended the FBI’s actions. “We don’t shred the Constitution when it’s popular,” Beck said.
Sen. Lindsey Graham (R-S.C.) said Wednesday he wants to modify federal law to allow the government to hold a terrorism suspect and interrogate him for an extended time before a decision is made about federal prosecution. “Even if you’re an American citizen helping the enemy, you should be viewed as a potential military threat, not some guy who tried to commit a crime in Times Square,” Graham said.
Ron Kuby, a New York criminal defense attorney who has handled terrorism cases, said it really did not matter whether the FBI read Shahzad his rights, because there appeared to be enough evidence already to convict him, most likely in a guilty plea. He pointed to the keys left in the SUV, his purchase of the SUV and his hurried attempted flight out of JFK.
The FBI is not worried that it cannot use any statements they are getting from him, because “he’s burned already,” Kuby said.
Richard Serrano in the Washington bureau contributed to this report.