For Justice Department, Times Square case is Christmas Day all over again

By Byron York
Chief Political Correspondent
WashingtonExaminer.com

As it investigates the Times Square bombing plot, the Obama administration is taking steps to correct some of the mistakes made after the Detroit Christmas Day bombing attempt.  But the administration seems as determined as ever to handle Times Square suspect Faisal Shahzad in the civilian justice system and not treat him as an enemy combatant, even though it appears Shahzad is connected to the Taliban in Pakistan.

In the Detroit case, the White House was embarrassed when key intelligence and national security officials testified that they had not been consulted in the decision to read detainee Umar Farouk Abdulmutallab his Miranda rights, after which Abdulmutallab stopped talking to investigators.  This time, the administration is making a public display of coordination.  “They have learned that it’s better to have the FBI and DHS Secretary standing with you at the podium at a presser when you announce an arrest than having them testify on Capitol Hill that they weren’t consulted,” says one Republican aide.

But the administration has not changed in its determination to grant Miranda rights to accused terrorists.  On a conference call with Hill staff a few minutes before Attorney General Eric Holder’s news conference Tuesday, Justice Department officials said Shahzad had been taken off the Emirates Airways plane and interrogated “pursuant to the public-safety exception of the Miranda Rule,” says the GOP aide.  That exception allows officials to question a suspect for a period of time without reading him his rights if officials believe there is an imminent threat of other attacks. “They said he provided important and actionable information,” the aide continues.  “He was then Mirandized.  They couldn’t tell us exactly when he was Mirandized and who made the decision to do it, but they said he then waived his right to remain silent and to counsel and to be brought before a magistrate.”

Everyone is glad that Shahzad is said to be cooperating with authorities.  But he could assert his right to remain silent at any time.  And that is a result of the administration’s decision, similar to one made in the Abdulmutallab case, to read Shahzad his rights early in the process.  “The first thing they said in the briefing was that they were questioning him pursuant to the public safety exception of Miranda,” says the GOP aide, “which means that Miranda was on their minds the whole time.  When you hear that, what that tells you is that all along they intended to charge the guy criminally, so the mindset hasn’t changed.”

Administration officials point out that Shahzad is a naturalized American citizen and thus is entitled to the full range of U.S. constitutional rights.  That’s not entirely accurate.  While being an American citizen means that Shahzad will ultimately be tried in civilian court — the Military Commissions Act applies only to aliens — there is no reason that Shahzad could not be declared an enemy combatant, held indefinitely and questioned at length during that period without Miranda rights.  “He couldn’t be prosecuted in military court,” says the aide, “but he could be held for intelligence interrogation purposes.”  The aide points out that Yaser Esam Hamdi, who was captured in Afghanistan, was a U.S. citizen, and the Supreme Court ruled that he could be held as an enemy combatant, although he had the right to challenge that designation in court.

So in the case of Shahzad, authorities are holding a Pakistani man who has been a naturalized citizen for the last year, much of which he spent in Pakistan apparently training for an attack on the U.S., who returned to this country to attempt to set off a bomb in the most heavily populated location imaginable, and who was headed back to Pakistan when he was caught.  The courts have said such a man, a U.S. citizen, can be designated an enemy combatant.  But so far, the Obama administration — just as it did in Detroit — has declined to take that course.