05.05.10

Stomping on the Constitution

Critics blasting the feds for reading Faisal Shahzad his rights aren’t just playing politics. Gerald L. Shargel on Joe Lieberman’s dangerous call to strip terror suspects of their citizenship.

Within hours of Faisal Shahzad's arrest, investigators had not only a confession to the Times Square car bomb plot but, according to the FBI, "valuable intelligence and evidence," that apparently led to arrests in Pakistan. The information obtained from Shahzad came within a constitutional framework. No deprivation of sleep. No waterboarding. No enhanced interrogation techniques. No torture of any kind.

As reported in The New York Times, Shahzad was first questioned without receiving Miranda warnings—that is, he was not, at first, reminded of his right to a lawyer or the right to remain silent. More than 25 years ago, in New York v. Quarles, the Supreme Court carved out a public safety exception to the judicially created safeguard that Miranda warnings be given to a suspect in custody before he is questioned, concluding that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." When the "public safety" factor evaporated, Shahzad was given the Miranda warnings but nevertheless waived those constitutional rights and continued to cooperate.

Senator Lieberman seems to be suggesting that for the “obviously guilty” the Constitution be damned.

John Avlon: The Taliban’s Favorite Website

Michael Sheehan: Watching the Terrorists

More on the Times Square bomb scare
Five months ago, the Christmas bomber, Abdul Farouk Umar Abdulmutallab, an al Qaeda operative, was apprehended on a Northwest flight with a bomb sewn into his underwear.  Republicans and other pundits had Homeland Security Secretary Janet Napolitano by the throat, with her arguable faux pas that "the system worked" in that case. In the case of Faisal Shahzad the system did work, and it worked well, in a dignified way that holds true to the American belief system. But in 21st century America there seems to be no event unworthy of politicizing.

Senator Christopher Bond, the ranking Republican on the Senate Intelligence Committee weighed in early with a statement to The New York Times: "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." In the debate over interrogation methods, Bond appears to have drifted over from the Fifth to the Fourth Amendment, worrying about the search warrant requirement while forgetting that here too there is an "exigent circumstances" exception that allows police to invade privacy without a warrant where public safety is at stake.

_ContinentalAd_ John McCain, still smarting from his loss to Barack Obama in 2008, stands ready to oppose the administration on almost any issue, declaring that the interrogators should play their cards more close to the vest by never telling the suspect that he has the right to remain silent. And Republican Representative Peter King, an outspoken opponent of the administration, believes that Shahzad should be tried before a military tribunal, ignoring the fact that as an American citizen alleged to have committed a crime on American soil, he can only be tried in a civilian court.

The most provocative position comes from Senator Joseph Lieberman, the right-leaning Democrat masquerading as an Independent. Lieberman took the opportunity to suggest legislation that would strip the citizenship of Americans "tied" to terrorism. The senator told Fox News that if American citizens "become affiliated" with a foreign terrorist organization they should 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."

Now how would such empty-headed legislation work? By whom and by what process would it be determined that an American citizen is "tied to" or "affiliated with" a foreign terrorist organization?  Are these issues to be decided at a preliminary hearing before proceeding to a trial bare of constitutional rights? And what rights attach at that preliminary proceeding: does due process and the other rights found in the amendments apply? Even President Eisenhower, in his 1954 State of the Union address, proposed stripping treasonous Communists of their citizenship only after conviction in the United States courts with the full panoply of constitutional rights. Senator Lieberman seems to be suggesting that for the "obviously guilty" the Constitution be damned. It is frightening to think that he may be serious.

The Democrats surely have the better side of the debate. In the eyes of the law, Faisal Shahzad, an American citizen who is alleged to have committed a crime in the heart of New York City, is entitled to have his case tried under the same rules as any other American citizen.

Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. He has written written for the New York Times, the Los Angeles Times, the New York Law Journal and the online magazine Slate. Mr. Shargel, a Practitioner-in-Residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."