The current cooperation of Faisal Shahzad, the accused Times Square bomber, has led to new arrests of possible accomplices and would appear to be a confirmation of Attorney General Eric Holder Jr.’s decision to pursue prosecution in a federal court rather than detention and trial as an enemy combatant. But a closer examination suggests lingering doubt over the current Holder approach.
On May 3, officers boarded a flight about to depart from New York’s Kennedy Airport bound for Dubai and Pakistan and detained Shahzad. Rather than arrest Shahzad as an enemy combatant — a step clearly authorized by statute and constitutional decision — the agents adopted the criminal justice model and engaged in initial interrogation without offering Miranda warnings on the ground that warnings were not required under the “public safety” exception to Miranda. Following this initial interaction with Shahzad, officers gave the suspect Miranda warnings. Shahzad then waived his Miranda rights and on May 5, Shahzad also waived his right to a speedy arraignment. On May 9, Holder declared “we’re going to reach out to Congress” to “at least modify…the public-safety exception [to Miranda]” in cases involving “ international terrorism.” For a number of interlacing constitutional reasons, the Holder approach is unwise.
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