Mirandize Shahzad? Of Course!

DragnetJackWebbTwo prominent Republican Congressmen have come out against reading Miranda rights to American citizens suspected of terrorism.

Congressional Republicans want to know whether the Pakistani-born American arrested in the Times Square car bombing plot was read his Miranda rights, with Sen. John McCain saying it would be a “serious mistake” if the suspect was reminded of his right to remain silent.

Rep. Peter King (N.Y.), the top Republican on the House Homeland Security Committee, wants to know whether the Justice Department consulted with the intelligence community before they decided to hold his trial in civilian court.

But King and McCain may be off base with their criticisms. U.S. citizens cannot be tried in military commissions, which is what Republicans prefer for terrorist trials. The 2006 law that outlines guidelines for the commissions authorizes them only for “alien unprivileged enemy belligerent[s].”

“Obviously that would be a serious mistake until all the information is gathered,” McCain (R-Ariz.) said on “Imus in the Morning” when asked whether the suspect, Faisal Shahzad, should have been Mirandized.

In a civilian trial, a judge can toss out evidence taken from a suspect who has not been read his Miranda rights.

“I hope that [Attorney General Eric] Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still,” King told POLITICO.

This, everyone seems to agree, is nonsensical.

  • John Cole: ” Half our political leadership wants a banana Republic, and our media is just treating it like it is another opinion. At what point do we start calling these people what they are?”
  • Scott Lemieux:  “Did John McCain strenuously object when Scott Roeder was read his Miranda rights? If not, I wonder what criteria McCain is using to determine which American terrorists are entitled to their constitutional rights and which aren’t…”
  • Bernard Finel:  “Faisal Shahzad is an American citizen, arrested by American authorities, on American soil.  This is not a difficult or controversial issue.  Charge him with treason if you want, but arguing that the government can essentially strip citizenship rights by fiat by declaring someone an ‘enemy combatant’ is both a stupid and incredibly dangerous position.”
  • Kevin Drum cites no less an authority than Glenn Beck:  “He’s a citizen of the United States, so I say we uphold the laws and the constitution.”

Indeed, there’s simply no question whatsoever that, if our intent is to charge Shahzad with a crime, he should have been Mirandized. First, failing to do so would automatically mean that any information he gave — along with any other information following from that information — would be subject to the Exclusionary Rule. Which is to say, tossed out of court. Second, there’s no possible harm that could come from reading him his rights as required by law.  By definition, he would already have been in police custody.  And, as an American citizen, it’s virtually inconceivable that he didn’t know his Miranda rights, anyway, what with their ubiquity on television.  (Although, either I’ve become immune to it or they don’t recite them as much as they used to on cop shows.)

Rick Moran disagrees.  Sort of:

First of all, it is never a “mistake” to follow the law. Mr Shahzad is an American citizen, and even if he had murdered thousands, he would still be entitled to the protections guaranteed under our Constitution.

And yet, this is one instance where the “ticking bomb” scenario might very well be a reality. Newsweek reports there may be a connection between Shahzad and the Pakistani Taliban leader Hakimullah Mehsud:


Might there be other terrorists in other major American cities waiting to strike as I write this? And would that be a good enough excuse for the government to arbitrarily waive Mr. Shahzad’s Constitutional rights, designate him an “enemy combatant,” and interrogate him using all legal means at our disposal (I take it as a given that President Obama has rejected “enhanced interrogation” as an option)?

For some on both sides of the argument, this is an easy question to answer in the affirmative or negative. However, knee jerk ideological reactions from civil liberties absolutists or bloodthirsty right wingers are just not good enough in this situation.

The threat is real and immediate. Hundreds – perhaps thousands – of American lives may be at stake. Wouldn’t it be easier just to forget the Constitution in this one instance and treat this terrorist as the enemy he himself claims to be?

First off, we can’t designate American citizens as “enemy combatants.”  The Supreme Court has made that quite clear, in case it wasn’t absolutely obvious upon reading the Bill of Rights.  Second, while the Constitution isn’t a suicide pact, it is supposed to limit government’s powers over its citizens.  Rule of law and all that.   Third, lest we forget, Shahzad is merely accused of a crime.   The government not infrequently accuses the wrong people.  Even, it turns out, for terrorism.

Now, I suppose, if the president or the attorney general felt strongly enough about the matter, they could order their subordinates to flout the law.  But that would mean that Shahzad would be much harder to jail.  And it would mean possible criminal charges against those ordering the unconstitutional acts and those carrying out those unlawful orders.

But let’s be clear:  Just as I didn’t trust President Bush, for whom I voted twice, to decide when to deprive citizens of their rights, I don’t trust his successor.  And neither should you.   That is, after all, the very definition of absolute power.  And we all know what that does.

Update (Steve Verdon): Senator Joe Lieberman has come out in favor of stripping citizenship for those accused of terroristic acts.

Joe Lieberman has a creative solution: Take away their citizenship. “If you’ve joined an enemy of the United States in attacking the United States and trying to kill Americans, I think you should sacrifice your rights of citizenship,” Lieberman, an independent from Connecticut, told reporters Tuesday.

Only one tiny problem…he is only accused of doing the above, it hasn’t been proven yet. Remember Richard Jewel and Stephen Hatfill? Should their citizenship have been stripped? After all sure would have made it easier not having to deal with Miranda and those pesky civil rights. I have to agree with Radley Balko, Joe Lieberman is nothing but a coward.

FILED UNDER: Law and the Courts, Supreme Court, Terrorism, US Constitution, US Politics, , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Franklin says:

    And yet, this is one instance where the “ticking bomb” scenario might very well be a reality.

    Yes, I’m sure that bomb will go off during the 15 seconds it takes to read Miranda.

  2. anjin-san says:

    Perhaps McCain can locate the guys who tortured him in Viet Nam and put them in charge of the whole thing.

    McCain has really become a tragic figure – a genuine hero, someone I used to admire greatly. Now it seems there is no pander too low for him to stoop to.

  3. James Joyner says:

    Yes, I’m sure that bomb will go off during the 15 seconds it takes to read Miranda.

    I gather Rick’s talking about enforcing Miranda rights rather than merely reading them. That is, it’s easier to get information quickly if there are no pesky lawyers and rights.

  4. JKB says:

    James, you’re correct. Hollywood has grown increasingly against reading people their rights in TV shows. In fact, presenting the act as detrimental to solving the crime. It’s good TV, of course, a guy sitting around not confessing doesn’t move the plot along. Worse still, is they portray that only guilty people decline to speak with the police. That everyone else will always benefit from trusting in the discretion of someone who is suspicious they committed a crime.

    As to the real world, it is very odd that so many feel it is wrong to Mirandize and therefore keep criminal prosecution via the normal judicial system available. If later, it is determined that lawfully the person can be stood before a tribunal, well, the interrogator simple gives the suspect the good news/bad news:

    Good news, no longer can anything you say be used against you in a court of law. Bad news, you’ll not be tried in a court of law.

    Good news, you still have the right to remain silent. Bad news, since we don’t have to justify our interrogation in a court of law, we have a few exercises that will test your ability to remain silent.

    Good news, you no longer have the right to an attorney, okay, that’s good news for us. Bad news, you no longer have the right to an attorney or to speak with anyone outside of your interrogators or jailers.

  5. Billy says:

    I came here hoping you’d pick this up. Your analysis on this is spot on.

    To anyone who thinks depriving American citizen “enemy combatants” of their miranda (or other) rights is a good idea, imagine what happens when the Tea Party movement is declared a terrorist organization and its members can be declared enemy combatants. Not such a good idea anymore, is it?

  6. Mithras says:

    I gather Rick’s talking about enforcing Miranda rights rather than merely reading them.

    Yes, that’s right. What McCain and King are actually arguing is that we should use force to make Shahzad talk. Of course, Sen. McCain has also co-sponsored a bill requiring anyone, citizen or not, who is suspected of terrorism to be handed over to U.S. military authorities for a determination of whether that person is an “unprivileged enemy combatant” and thus not entitled to any constitutional rights at all. So it’s not surprising that he advocates torture of citizens now. Good thing he will never be President.

  7. That is, after all, the very definition of absolute power. And we all know what that does.

    Sadly, I’m not sure that we all do or there would be less proselytizing for government takoevers of heavy industry, financial institutions, health care, etc. …

  8. Bill Jempty says:

    Just the facts- the picture of Jack Webb is from the early Dragnet. There were two editions* and the second one that ran from 1967 to 1970. Sgt Friday read suspects their Miranda rights during those shows.

    I never watched the first edition of Dragnet. It went off the air two years before I was born.

    *- There were two shows called Dragnet after Webb died. I don’t count these.

  9. john personna says:

    What do these guys want, a small, authoritarian, government? Doesn’t quite make sense. Are small police states less dangerous?

    Charles, I agree that governments should not seize control of industry. Of course, most of the takeovers you list are of people who went broke and hiked themselves down to Washington hat-in-hand.

    (Healthcare is something else, yes.)

  10. Michael Reynolds says:


    You are absolutely right.


    You are so right about McCain. This is a man I used to point out to my son as the real deal. What a shocking fall. I’m embarrassed for him.

  11. FWIW, this post makes an interesting counterpoint to the “Blatant Unconstitutionality” post below.

  12. PD Shaw says:

    First off, we can’t designate American citizens as “enemy combatants.” The Supreme Court has made that quite clear, in case it wasn’t absolutely obvious upon reading the Bill of Rights.

    I think that’s incorrect. The ruling in Hamdi v. Rumsfeld was that citizens could be designated as enemy combatants and detained indefinitely so long as they at some point had some ability to challenge the designation. It was Justice Scalia in dissent that argued unsuccessfully that U.S. citizens can only be detained if habeas is suspended by Congress or if criminal charges are brought.

    Miranda is only relevant if you want to bring charges in a civilian court and you want to avoid the risk of evidence being excluded. If people are going to be detained under law of war principles, it’s irrelevant.

  13. Rick Almeida says:

    Hear, hear, James. Well said.

  14. James Joyner says:

    Just the facts- the picture of Jack Webb is from the early Dragnet. There were two editions* and the second one that ran from 1967 to 1970. Sgt Friday read suspects their Miranda rights during those shows.

    Yup. I’ve seen both iterations, although mostly the second Webb incarnation. And I agree the post-Webb ones aren’t canonical — although the Akroyd and Hanks movie was pretty funny.

  15. PD Shaw says:

    One other niggling point, Miranda is not a Constitutional right; it’s a Prophylactic rule, which means that it overprotects against violations of other rights. If a judge doesn’t think it serves a useful purpose in a case, it’s not required. What Rick Moran is suggesting sounds to me like one of those situations where Miranda won’t be required.

  16. Franklin says:

    I gather Rick’s talking about enforcing Miranda rights rather than merely reading them. That is, it’s easier to get information quickly if there are no pesky lawyers and rights.

    Ahhh, okay, I failed to carefully read Moran’s whole point. But still, this fanciful “ticking bomb” scenario only happens on 24, so it’s stupid to even be talking about it in a serious fashion.

    If you want good reliable information, it’s far better to take the time to gain a suspect’s trust in 99.997% of cases (made up number).

  17. sam says:

    I know he’s an American citizen but still,” King told POLITICO.


  18. legion says:

    Wow. I’ve never seen a sensible quote attributed to King yet, but McCain? I didn’t think my respect for him as a Senator, military man, or general human being could sink lower. I was wrong.

  19. RWB says:

    It really scares me when Glen Beck is the voice of reason on the right.

  20. Gustopher says:

    I really wish Obama would just declare George W. Bush an enemy combatant, ship him off to Guanatamo, and comply with Hamdi v. Rumsfeld with a meaningless hearing scheduled for several years in the future.

    It would be dramatic enough to demonstrate the level of abuse that can come from these rather shocking powers claimed by the Bush administration, and never relinquished by the Obama administration.

    A perfectly comfy cell for the former President, add a recliner or a couch, a big tv, perhaps not even waterboard him. Just enough to demonstrate the potential effects of these rulings.

  21. mannning says:

    OT: Jack Webb was married to Julie London for a while, if my memory serves. She was one good-looking woman, and a compelling singer.

    My vote is with Joyner on this issue: he set the correct path. While I do side with the TTB compulsion to get to the truth quickly, the current law overrides the alternatives.

    Apparently, the culpret has admitted his guilt, which does change the game. The old rule of waiting a few hours (72?) before commiting to a position seems to have been validated once more.

  22. Steve Plunk says:

    The stripping of citizenship is very dangerous for all of us. The accused should retain all of his rights as a US citizen even after any eventual conviction. This guy may be a dirt bag but conservatives should always desire government power to be restrained.

  23. Steve Verdon says:

    The obvious problem is that law enforcement will have a huge incentive to use “terroristic activities” as a way to make it easier to gather evidence and win convictions. Its a horrible, horrible idea and frankly the people making these kinds of suggestions should be shunned. Of course, they’ll actually be re-elected to office because democracy is magical.

  24. physics geek says:

    I cannot believe are discussing this. He is a U.S. citizen and as such is entitled to all rights and privileges, such as being Mirandized.

  25. Steve Verdon says:

    I cannot believe are discussing this. He is a U.S. citizen and as such is entitled to all rights and privileges, such as being Mirandized.

    If you had read Robert Higg’s Crisis and Leviathan you’d have no problem believing it.

  26. MarkedMan says:

    James was absolutely correct in bringing up Hatfield and Jewel. Is there any doubt that if they were declared enemy combatants and tortured that they would have a)confessed and b)incriminated many other innocent people to make the torture stop? And those innocents would in turn be declared enemy combatants and tortured, ad infinitum. And we would have never known they were innocent and never caught the real criminals.

    The real perpetrator for the attempted Olympic bombing was Eric Rudolph and not Richard Jewel. Rudolph successfully bombed a gay bar, killing several with a nail based shrapnel bomb. He was also a sick twisted fundamentalist christian, sheltered and hidden by other sick fundamentalist christians. Timothy McVeigh of the Oklahoma Bombing was also a fundamentalist christian. I never heard a peep about the need to torture them or their enablers. Why is that?

  27. Pug says:

    This guy won’t be enjoying any of his rights from the 23-hour a day lock down at Florence, Colorado. He won’t be able to vote. He won’t own a gun. He won’t have freedom of speech. He may still be a citizen but he won’t even have contact with other human beings. That’s what he has to look forward to for the next 35 or 40 years.

    We could torture him for fun, though. It would make a lot of “real Americans” feel better.

  28. SoFedUp says:

    Lieberman did not say that someone “accused” should be stripped of their citizenship. He said that if it was “ascertained”, which I take to mean convicted in a court of law, that an American citizen had joined a terrorist organization waging war on the United States, that person should face being stripped of their citizenship and the rights that flow from that citizenship. He compared it to a current federal law that allows citizenship to be stripped from someone that joins a foreign army that has been declared an enemy of the United States and said that it could perhaps be amended to include joining a terrorist organization with the intent of harming the United States.

    For an American to join a terrorist organization whose stated intent is to cause harm to the United States and then for that American to then attempt such harm seems to me to be treason. The last time I looked, someone convicted of treason can have their citizenship revoked. I don’t find what Lieberman said, as long as it is not directed to someone accused, but instead someone found guilty, to be objectionable.

  29. sam says:

    As usual, Orin Kerr over at Volokh comes through with a succinct clarifying post on a legal matter, to wit, just what is involved in Miranda (no disrespect to PD’s post, Orin’s is just a little more expansive):

    [I]t would not have violated Shahzad’s constitutional rights to not read him his Miranda rights. A lot of people assume that the police are required to read a suspect his rights when he is arrested. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court. See id. at 772—73. Indeed, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful.

    And for all the hotheads:

    The suspect, Faisal Shahzad, was interrogated without initially being read his Miranda rights under a public safety exception, and provided what the F.B.I. called “valuable intelligence and evidence.”

    After investigators determined there was no imminent threat to be headed off, Mr. Shahzad was later read his rights to remain silent, but he waived them and continued talking, the F.B.I. said. Authorities charged him as a civilian on Tuesday, but postponed plans to bring him to court. [Source]

  30. PD Shaw says:

    Thanks for the link, sam. I tried to google “emergency exception” to Miranda yesterday and couldn’t find anything.

    Also, from my reading of the charges yesterday, there was so much physical evidence (and eye-witnesses) connecting the accused to the crime before he was taken into custody, that whether he was ever Mirandized probably didn’t matter.

  31. sam says:

    Yeah, PD, the exception is interesting (and I hadn’t known there was such a thing). Here’s what the Miranda wiki says about the public safety exception:

    There is also a “public safety” exception to the requirement that Miranda warnings be given before questioning: for example, if the defendant is in possession of information regarding the location of an unattended gun or there are other similar exigent circumstances which require protection of the public, the defendant may be questioned without warning and his responses, though incriminating, will be admissible in evidence (see New York v. Quarles, 467 U.S. 649 (1984)).

    Please everyone note that under the exception, incriminating statements are allowed to be entered into evidence at trial.

  32. Bill H says:

    “I cannot believe are discussing this. He is a U.S. citizen and as such is entitled to all rights and privileges, such as being Mirandized.”

    We keep talking about whether or not the perp is a citizen. I don’t see where, in our constitution, it says that “an American citizen” is entitled to any rights under law. It says “no person” shall be deprived… and “every person” shall be entitled…

    The fact of citizenship is not the test to apply as to treatment under the laws of this land. The test is jurisdiction. Any person subject to our laws, any person being dealt with by our system of laws, is accorded a set of rights by our constitution.

    The reason for that is that how we treat the accused is not about the accused. It is about us; it is about who we are. It does not matter who they are. It is because of who we are that we have these laws and that we give these rights to someone accused of crimes.

  33. PD Shaw says:

    under the exception, incriminating statements are allowed to be entered into evidence at trial.

    Honestly, I didn’t think that would be the precise rule. But given that it is, I think it would be irresponsible for law enforcement in a case like this not to ask questions intended to determine whether there are other similar acts underway.

  34. Steve Verdon says:


    Sorry you are wrong. The accused or the “ascertained” would be stripped of his/her citizenship then the person could go to court to try and get it back. It is an instance of prove you are innocent, when you get right down to it…proving a negative.

    It only works prior to the arrest, not after conviction since we are talking about Miranda rights. Here is more from the link,

    Lieberman argued that if an act of terrorism was coordinated with a group designated as a terrorist organization, then an American involved with such a group would lose citizenship and the constitutional protections that come with it. “It just seems to me if you’re attacking your fellow Americans in an act of war, you lose the rights that come with citizenship,” he said.

    Lieberman said that the revocation of citizenship would not be automatic and there would be a right to go to court and to appeal the decision.

    Maybe he has clarified his position, but based on that, it appears that the loss of citizenship would be prior to conviction with the right to go back and try and reclaim it.

  35. PD Shaw says:

    I’m not sure what Lieberman meant either. There is already denationalization laws in place. CITE. If a U.S. citizen engages in hostilities against the US. while serving in a foreign army, the U.S. can initiate a civil lawsuit to strip his citizenship. This provision was used to strip German-Americans of their citizenship when they joined with Germany in World War II. What Lieberman may mean to do is amend this law to specifically include non-state actors with whom we are at war.

    I don’t know that it means much. There are not necessarily a lot of legal rights that stem from citizenship. Personally, given the choice of criminal punishment and exile, there are a lot of stupid fools I’d just assume be removed from the country than be punished.

  36. CheMan says:

    Why stop with this big bad evil Muslim?

    Why not do the same rough interrogation with white anti-govt militia fanatics or Jews who spy on America for Israel (like Scooter Libby, Rosenbergs, Johnathon Pollard, etc.).

    Are they not a threat to America’s national security or national citizens.

    Typical Conservative hypocrisy here from what I been reading.

  37. Ross Wolf says:

    Who is Behind Sen. Joe Lieberman’s Proposed Fascist Legislation?

    Sen. Joe Lieberman has already endorsed McCain’s March 4th bill S.3081 that would strip Americans of Habeas corpus: Under the McCain bill, U.S. Government would need only designate an American Citizen was an “Unprivileged Enemy Belligerent” suspected of; having engaged in hostilities against the United States or its coalition partners; or purposefully and materially supported hostilities against the United States or U.S. civilians to cause their indefinite detention in military custody, without right to an attorney or trial.

    Joe Lieberman’s proposed bill would make it easy to strip Americans of their Citizenship and hold them as “Unprivileged Enemy Belligerents” as U.S. Government would only have to show a U.S. Citizen or group had slight-interaction with a foreign group that touched a terrorist organization, for example Irish Americans living on the east coast of the United States contacting their alleged IRA relatives in Northern Ireland. Since many political groups intersect, even unknowingly with alleged terrorists, Lieberman’s bill would make it possible for a U.S. Government administration to do large sweeps of U.S. Citizens denying Americans Habeas corpus, to try them in military tribunals. One might want to ask who put Lieberman up to introducing this fascist bill that favors Israel. It should be noted Joe Lieberman’s June 4th endorsement of McCain’s bill S.3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” strips Americans of Habeas corpus; there appears to be a pattern here between McCain and Lieberman legislation. McCain’s bill S.3081 would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. S.3081 is so broadly written innocent anti-war protesters and Tea Party Groups might be arrested and detained just for attending demonstrations; Government could charge that attending demonstrations “materially supported hostilities.”
    McCain’s legislation S.3081 could like Lieberman’s proposed bill be used by a corrupt U.S. government administration to crush anyone that dared question government. Under McCain’s S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government would have the power to detain and interrogate any individual including Americans without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States; its coalition partners; or against U.S. civilians. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)

    At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use “mere suspicion” to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney. It is problematic under McCain’s S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.

    S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.” The “supporting hostilities” provisions in S.3081 are so broad Government could use “suspicion” to detain U.S. corporate executives on the premise their corporations “supported hostilities” by providing goods or services to a nation engaged in hostilities against the United States.

    (Make Your Own Determination If The Analysis Herein Is Correct) See McCain’s 12-page Senate bill S.3081 at: