Krauthammer: How to modernize Miranda for the Age of Terror

By Charles Krauthammer

“(Law enforcement) interviewed Mr. Shahzad ... under the public safety exception to the Miranda rule. ... He was eventually transported to another location, Mirandized and continued talking.”

- John Pistole, FBI, May 4

All well and good. But what if Faisal Shahzad, the confessed Times Square bomber, had stopped talking? When you tell someone he has the right to remain silent, there is a distinct possibility that he will remain silent, is there not? And then what?

The authorities deserve full credit for capturing Shahzad within 54 hours and for obtaining information from him by invoking the “public safety” exception to the Miranda rule.

But then Shahzad was Mirandized. If he had decided to shut up, it would have denied us valuable information - everything he is presumably telling us now about Pakistani contacts, training, plans for other possible plots beyond the Times Square attack.

Think of the reason we give any suspect Miranda warnings. It is not that you're prohibited from asking questions before Mirandizing. You can ask a suspect anything you please. But without Miranda, the answers are not admissible in court.

But in this case, Miranda was superfluous. Shahzad had confessed to the car-bombing attempt while being interrogated under the public safety exception. That's admissible evidence.

Second, even assuming that by not Mirandizing him we might have jeopardized our chances of getting some convictions - so what? Which is more important:

l Gaining, a year or two hence, the conviction of a pigeon - the last and now least important link in this terror chain - whom we could surely lock up on explosives and weapons charges?

l Or, preventing future terror attacks on Americans by learning from Shahzad what he might know about terror plots in Pakistan and sleeper cells in the United States?

Even posing this choice demonstrates why the very use of the civilian judicial system to interrogate terrorists is misconceived, even if they are, like Shahzad, (naturalized) American citizens. The logical, serious way to defend ourselves against the ongoing jihadist campaign is to place captured terrorists in military custody as unlawful enemy combatants.

But let's assume you're wedded to the civilian law-enforcement model, as is the Obama administration. At least expand the public safety exception to Miranda in a way that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case.

The public safety exception should be enlarged to allow law enforcement to interrogate, without Mirandizing, those arrested in the commission of terrorist crimes (and make the answers admissible) - until law enforcement is satisfied that vital intelligence related to other possible threats has been sufficiently acquired.

Otherwise, we will be left in the absurd position of capturing enemy combatants and then prohibiting ourselves from obtaining the information they have, and we need, to protect innocent lives.

n Comments: letters@charleskrauthammer.com