According to Katie Couric, New York mayor Michael Bloomberg has been watching the Times Square bombing case more closely than anyone. He nevertheless pronounced over the weekend that the terrorist would probably turn out to be “homegrown — maybe a mentally deranged person or someone with a political agenda that doesn’t like the health-care bill or something.” I’m glad I’ve been out of town, since I fit the profile — not that Hizzoner would ever profile.
As it happens, there is a real profile for this sort of thing and, mirabile dictu, it held up: A young Muslim male from the Middle East (born in Pakistan) has been arrested for engaging in an act of jihadist terror. The apprehension of Faisal Shahzad as he sought to flee the country for Dubai has refueled the controversy over how terrorist attacks should be handled. Are they law-enforcement matters subject to Miranda warnings, appointment of counsel, and ordinary prosecution? Or should they trigger a military process, including lengthy detention without counsel for interrogation purposes?
The Obama administration strongly prefers the law-enforcement model, and that is how the Times Square case is being handled. Though I believe the military process should be our default choice during wartime, the administration should be cut some slack in this case. There are things to criticize, and the case bears close watching. Knee-jerk derision, though, would be a mistake.
AMERICAN CITIZEN ENEMIES
In two critical ways, this case is different from the attempted Christmas bombing. First, the man who has been apprehended, Faisal Shahzad, is an American citizen. Christmas terrorist Umar Farouk Abdulmutallab was not. Second, there was very strong evidence that Abdulmutallab was an al-Qaeda operative. We don’t have that sort of intelligence on Shahzad at this point.
The citizenship complication is a big deal. About a year ago, Shahzad became a naturalized American. National-security conservatives are thus pointing to Ex Parte Quirin (1942), the World War II saboteurs case in which the Supreme Court upheld the military detention, trial, and execution of an American citizen. Like his seven German confederates, Herbert Hans Haupt was clearly a Nazi operative sent to the United States to commit acts of terrorism. Further, in the 2004 Hamdi case, the justices reaffirmed the validity of military detention for Yaser Esam Hamdi, an American citizen captured on a foreign battlefield fighting for al-Qaeda.
Note, however, that in both Quirin and Hamdi, there was convincing evidence that the American citizen in question had been captured fighting on behalf of the specific enemy against whom Congress had authorized the use of military force. At the moment, we don’t have that with respect to Shahzad.
We may get it: The Taliban has made a dubious claim of responsibility. More important is the fact that, although it does not allege Taliban or al-Qaeda ties, the complaint filed against Shahzad alleges overseas terrorist training in Waziristan, as well as telephone contacts with associates in Pakistan. And the New York Times is reporting that the Pakistani government has now arrested several men who may be tied to the Pakistani Taliban. Still, this was a very incompetently constructed bomb, which is not al-Qaeda’s stamp. In addition, the Nissan Pathfinder was left in the vicinity of the midtown offices of Viacom, the outfit responsible for the Muslim rage du jour, a South Park episode featuring Mohammed as a teddy bear. This raises at least the possibility of the sort of diffuse Islamic mayhem prompted a few years back by the Dutch cartoons: violence inspired by widely disseminated Islamist ideology but not necessarily directed by a terrorist organization.
Herein, for what it’s worth, lies my quarrel with the administration’s handling of the case. We were not required to sort out, at the moment of capture, whether Shahzad should be detained militarily or handed over to the civilian justice system. The president can and should detain and interrogate Shahzad until it is established either that he is with al-Qaeda and its affiliates, who are the enemy under the 2001 Authorization for the Use of Military Force (AUMF), or that he is not. (As I explained in the Corner on Wednesday, it is not at all clear that the Pakistani Taliban fits the AUMF’s description of the enemy.)
Attorney General Eric Holder no doubt would counter that enough preliminary questioning had already been done. Shahzad was apparently subjected to a few hours of questioning by a specialized interrogations unit before being given Miranda warnings. This was done under the “public safety” exception to Miranda, under which statements given in response to police questioning during an emergency may be admissible in court even if the suspect had not been advised of his rights to remain silent, to have counsel, etc.
That is fine . . . as far as it goes. But it takes more than a few hours to conduct a thorough, competent interrogation — leads have to be run down, stories checked, new evidence evaluated, and so on. The preliminary questioning that was done may have satisfied Holder that the case belongs in civilian court, but it cannot have resolved whether Shahzad is an enemy combatant who could be a useful, long-term intelligence source. The country is at war, and destroying the enemy is more important than obtaining a conviction in any particular terrorism trial. So what’s the rush? Several enemy combatants, including Hamdi and another American citizen, Jose Padilla, have been detained for years before their cases were adjudicated. There is just no need to make a hasty judgment call.
A BAD CALL, BUT NOT AN UNREASONABLE ONE
So, if it was a bad call to consign Shahzad immediately to the civilian justice system, why cut Obama, Holder, et al. any slack? Because we don’t know what the state of the evidence was when the decision was made to try to get a confession that would hold up in court. We can conclude top officials are wrong without thinking they are being unreasonable — a benefit of the doubt the Left never gave the Bush administration.
The case against Abdulmutallab was extremely strong because he tried to blow up the plane in front of nearly 300 witnesses. There was no need to worry about a confession in order to convict him, so there would have been nothing to lose in designating him as an enemy combatant and grilling him without counsel to cull any intelligence he was in a position to give us. And it was obvious with Abdulmutallab — who had been trained for months by al-Qaeda in Yemen — that his intelligence would be significant.
By contrast, the case against Shahzad now appears overwhelming mainly because he has, according to the complaint, confessed. The proof apart from this confession could turn out to be very strong, but it will take time before we can know that for certain. The FBI will need a couple of weeks to go through the Pathfinder carrying the bomb for all the forensic evidence that may tie Shahzad and others to the attempted atrocity. It was only a couple of days ago that law enforcement was publicly saying the main suspect was a white guy in his forties, and now it turns out that they’ve arrested a 30-year-old of Pakistani descent.
This is not a case with 300 eyewitnesses. Investigators will have to chase down leads, analyze phone records, and do all the investigative work that ultimately tightens the noose. While cases typically get stronger over time, there is never a guarantee that they will, and the best time to get a confession is right at the moment of capture. Under those circumstances, I can’t find much fault in the Justice Department’s decision to handle the case in a way designed to make certain that any incriminating statements Shahzad made would be admissible.
Again, it is not how I’d like to see these cases handled. But the fact is that the Justice Department may very well end up here with an American citizen who does not qualify for enemy-combatant status but nonetheless attempted to commit a horrific act of terrorism that cries out for a conviction and a life sentence. It’s understandable that they would want to maximize the chances for a successful prosecution.
There are many reasons to be critical of the manner in which the administration has handled the war on terror. This case, moreover, already appears to feature many flaws of the Obama administration’s approach to counterterrorism: its reliance on luck rather than aggressive intelligence collection, its inattention to the fact that jihadist ideology is mainstream among Muslims living here and overseas — like Mayor Bloomberg, administration officials were keen that the bomber be a “white guy” and quick to assume that he was a lone wolf — and its misplaced confidence that, because nothing too terrible happened this time, its overall approach is sound.
Still, our criticism ought to be measured here. And it ought to be expressed with due admiration for the fact that law enforcement — despite the information deficit and political correctness that cops and agents had to work through — quickly got on top of things and prevented a would-be mass-murderer from getting away, probably for good.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author most recently of The Grand Jihad: How Islam and the Left Sabotage America, to be published by Encounter Books on May 25, 2010.