Terror by Lawsuit
Will Congress ease the way for terrorists to sue U.S. officials?


Alleged Times Square bomber Faisal Shahzad was presented to a judge this past Tuesday, after being held in custody, incommunicado from everyone except his interrogators, for two weeks. According to reports, the interrogators included federal prosecutors and agents from Manhattan, as well as members of the president’s newly minted High-Value Detainee Interrogation Group (HIG).

Infamously, the HIG was not deployed by the Obama administration to question underwear bomber Umar Farouk Abdulmutallab back in December — because (unbeknownst to the recently resigned director of national intelligence Dennis Blair) it did not actually exist yet, even though it had been announced with fanfare late last summer.

This time, the administration sprang into action much more spryly, taking its lead from Preet Bharara, the U.S. Attorney for Manhattan, and others in law enforcement who prioritize public safety over safely covering their butts. Shahzad’s two weeks in custody without appearing before a judge is almost unprecedented and reflects the interrogators’ determination to get intelligence about other plots and prevent future attacks. Had the prosecutors followed the usual criminal-justice playbook, Shahzad would have been presented to a judge and given a lawyer as soon as possible after arrest, or at most 24 or 48 hours after arrest — even though he waived his rights to appear before a judge and have a lawyer. Instead, the prosecutors accepted Shahzad’s waivers so that his interrogation would not be disrupted, informing a judge during the interrogation that “uninterrupted access [to Shahzad] has been, and continues to be, extremely beneficial, if not essential, to the investigation.”

The interrogation has produced results, including raids of possible co-conspirators, search warrants, and overseas arrests of Shahzad’s bomb trainers, and it has made us safer. As we wrote last week, the prosecutors handling Shahzad deserve our praise and gratitude for taking the risk of a judge’s rebuke to gain knowledge about Shahzad’s co-conspirators.

But there remains the chance that a court might suppress Shahzad’s statements so they cannot be used against him at trial. The court might decide, essentially, that Shahzad’s two weeks in custody without appearing before a judge or getting a lawyer were so inherently coercive that his waivers should not be accepted as “knowing and voluntary.”