As Dan points out below, all indications are that Faisal Shahzad is cooperating in the government’s investigation into the Times Square bombing attempt. That was apparent from the New York Times report earlier today, which described the arrests in Pakistan of several suspects. Besides the fact that the information supporting these arrests almost certainly came from Shahzad (and the FBI did, after all, leak that he was being cooperative), there was this passage in the Times story: “The authorities charged [Shahzad] as a civilian, but he did not appear in court and no hearing has been scheduled.”

A little criminal procedure: Faisal was arrested on a complaint, not an indictment. A complaint is a description (under oath, usually by a law enforcement officer) of the offense(s) the government alleges and of the factual basis for concluding that there is probable cause to support an arrest on those charges. When a defendant is first brought to court after being arrested on a complaint, the proceeding is called a “presentment,” not an “arraignment.” Because the charging instrument is merely a complaint, the defendant is not asked to enter a plea of any kind. Instead, the court (in federal court, by a U.S. magistrate-judge) advises the defendant of the reason he has been arrested, reviews the complaint to make sure there is probable cause, determines whether the defendant has retained counsel or needs to have a lawyer appointed (at public expense), sets bail (or, if the government is seeking detention, holds or schedules a detention hearing), and schedules a “preliminary hearing.” (In the Southern District of New York, my old office and the venue for Shahzad’s case, preliminary hearings never actually occur. In a preliminary hearing, the government must present evidence before a judge to establish the probable cause alleged in the complaint; it is not necessary to hold such a hearing if the government obtains an indictment on or before the hearing date. In the SDNY, the government always goes to the grand jury for an indictment in lieu of a doing preliminary hearing before a judge.)

Like most constitutional and statutory rights, the defendant can waive a his right to a presentment. It is sensible to do that only if the defendant is cooperating.

In the ideal situation, the agents grab a suspect, no one else knows about the arrest, as far as the defendant’s confederates know it’s business as usual, and therefore the defendant can make recorded phone calls, wire up for meetings, and help the government build a solid case against his coconspirators.

With a notorious defendant, however, or with any defendant who has been apprehended in a very public place, it is not possible to keep the arrest secret. Still, if you can get the defendant to cooperate, there’s a lot he can do for you in those first hours and days before any of his confederates realize he is cooperating. The trick is to clamp down as much as possible on the information the defendant is providing so the agents can exploit the information, secure more evidence, and make more arrests. Suspects who realize that they’ve been compromised tend to destroy evidence and go on the lam.

So here’s what I don’t understand: Why did the government file a public complaint in this case?

If the defendant waives his right to be presented in court, there is no need to file a complaint. The complaint only comes into play at the presentment, when the court determines whether there is probable cause to support the arrest. If there is no presentment, there is no need to file a complaint.

This complaint lays out valuable information: It tells the world Shahzad has confessed (which means he has spoken cooperatively and probably truthfully to the government, and that for all anyone knows he is still doing so), it describes his contacts in Pakistan, and it lays out other details that would be of great interest to anyone else who is involved in the plot and would naturally want to know what an arrested plotter is telling the authorities.

Now sometimes, these revelations are unavoidable. When you make an arrest, you do so assuming you will have to reveal the basis for the arrest in a public complaint. You never assume cooperation. You calculate that getting a dangerous suspect off the street is worth the price of disclosing your evidence. And sometimes a defendant will not make up his mind to cooperate until after the complaint has already been filed — in which case, to make the cooperation more effective, everyone acts like it’s a normal arrest situation: the defendant appears in court, the presentment is held, counsel is appointed, a bail/detention hearing is scheduled, and no one lets on to the outside world that the defendant and his lawyer are actually spilling the beans to the prosecutor and the agents.

But in Shahzad’s case, neither of those scenarios is in play. He was arrested late on May 3 and the complaint was not filed until the next day. In a sensitive case, complaints are usually filed under seal and not unsealed until the defendant appears in court. Since Shahzad obviously waived his right to be presented, there was either no need to write the complaint yet or, if it was already written and filed when he started cooperating, there was no need to unseal it. Further, if Shahzad started cooperating only after the public filing of the complaint — which doesn’t seem possible under the circumstances — the thing to do would have been to go ahead and have the presentment in court, thereby doing what you could do to avoid tipping the bad guys off about the cooperation.

So why unnecessarily release a complaint that lays out valuable information and then refrain from holding the presentment? By doing that, the Justice Department has told the world — including anyone who might have been working with Shahzad — both what Shahzad has told investigators and that he is continuing to help investigators. Why would we want to do that?

The cynic in me is suspicious. Needlessly making the complaint public may harm the ongoing investigation, but it is savvy public relations. It gives the Justice Department and the administration a script with which to portray themselves as super-competent and the civilian justice system as so effective that Bush-era relics like military detention are unnecessary. I hope there’s a better explanation than that. If there’s not, then the administration has prioritized scoring political points over effective investigation and intelligence gathering.