Sunday, May 9, 2010;
IT HAS BECOME accepted wisdom that the United States is engaged in an unconventional war against terrorist forces. Yet the Obama administration's response to attempted acts of domestic terrorism has been consistently conventional: Suspects are apprehended, perhaps questioned under a public-safety exception to Miranda rights and then read their rights hours later and charged in a civilian court. This was the pattern followed with the Nigerian man accused of trying to blow up an airplane over Detroit on Christmas Day and with Faisal Shahzad, the U.S. citizen charged with trying to detonate a car bomb last weekend in New York's Times Square.
We do not join the chorus of critics insisting that all suspected terrorists be treated as enemy combatants. The law enforcement model, including prosecution in civilian courts, has been a powerful and time-tested tool. Federal courts should be the preferred venue for U.S. citizens. But it gives us pause that the administration has not given more consideration to other approaches, including the possibility of designating suspects as enemy combatants to allow for lengthier interrogations, which could yield intelligence to thwart terrorist operations and future attacks.
In part, this is a reflection of the administration's mind-set. In explaining the handling of Mr. Shahzad, two administration officials told us that they believe that the law categorically bars them from holding a U.S. citizen as an enemy combatant. This is not correct. The Supreme Court concluded in Hamdi v. Rumsfeld in 2004 that the government had the right to hold as an enemy combatant a U.S. citizen who was captured fighting for the Taliban in Afghanistan. The court left intact a World War II-era holding that allowed the government to prosecute as an enemy combatant a U.S. citizen who was captured on U.S. soil while part of a Nazi sabotage operation. What is not at all clear is whether the current Supreme Court would bless such an approach in a contemporary case. Perhaps this is what Attorney General Eric H. Holder Jr. was referring to when he offered a more qualified view, noting on Thursday that "courts have not totally weighed in . . . in all of these areas."
Yet the status quo is not ideal for all cases. For example, the "ticking time bomb" exclusion to Miranda allows law enforcement to interrogate a suspect before reading him his rights; information gathered during this process is admissible in court. But current law requires that a suspect be read his Miranda rights once the government rules out an immediate threat. How long can this Miranda-less questioning proceed before the government is deemed to have violated the suspect's constitutional rights? No one knows. The courts have not set specific time limits, and Congress has not weighed in.
Lawmakers and the White House should work together to craft a more rational structure -- modeled after systems in place in Israel and several European countries -- that allows mining of intelligence and does not force the suspension of interrogations once an imminent threat is ruled out. For example, the government would have a set number of days to question terrorism suspects; it would have to advise a federal court of its interrogation, but public notice of the suspect's detention could be withheld so as not to tip off possible conspirators. Interrogators would be bound by all domestic and international strictures against torture and cruel and inhumane treatment. Once the interrogation time period expired, the government would have to decide whether to move forward with a federal court prosecution or a military commission. In rare cases, the government should have the flexibility to hold a suspect who is deemed too dangerous to release but against whom there is not enough evidence to prosecute in either venue; such cases would be subject to periodic judicial review.
Obama administration officials may be right in most cases that conventional law enforcement tools are adequate to meet the difficult challenges of domestic terrorism. They point to Mr. Shahzad's apparent cooperation as proof that respecting a suspect's constitutional rights does not automatically stop the flow of useful information. But what will they do when they come upon a suspect or a circumstance where these traditional tools fall short? Refusing to acknowledge or explore legitimate alternatives is foolish and potentially dangerous.