How to modernize Miranda for the Age of Terror
"[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 deputy director, 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. Credit is also due them 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.
The public safety exception is sometimes called the "ticking time bomb" exception. But what about information regarding bombs not yet ticking but being planned and readied to kill later?
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 damn well please. You can ask him if he's ever picked his feet in Poughkeepsie -- but without Miranda, the answers are not admissible in court.
In this case, however, Miranda warnings were superfluous. Shahzad had confessed to the car-bombing attempt while being interrogated under the public safety exception. That's admissible evidence. Plus, he left a treasure trove of physical evidence all over the place -- which is how we caught him in two days.
Second, even assuming that by not Mirandizing him we might have jeopardized our chances of getting some convictions -- so what? Which is more important: (a) 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, or (b) 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?