Charles Krauthammer has an Op-Ed in today's Washington Post entitled How to modernize Miranda for the Age of Terror.
In it, he fans the flames of fear by asking
What if Faisal Shahzad, the confessed Times Square bomber, had stopped talking?
There's a simple answer. Miranda has a public safety exception (a.k.a. the "ticking time bomb" exception). It was invoked the first time they interrogated Shahzad. And it worked exactly as it was supposed to.
Krauthammer argues that further Miranda warnings were superfluous because he had already confessed while being interrogated under the public safety exception. But his real complaint is much broader:
the very use of the civilian judicial system to interrogate terrorists is misconceived, even if they are, like Shahzad, (naturalized) American citizens. (Scare parentheses around the word "naturalized" are Krauthammer's, not mine.)
Miranda has worked for 43 years. The public safety exception was created in 1984. Rehnquist (a sound conservative) wrote the opinion. The public safety exception is already controversial--but now pundits and certain Members of Congress want to expand it.
The fact that Republicans are criticizing the Obama administration's interruption of terrorist attempts by the underwear bomber and the Times Square bomber as "lucky" (quoting House Minority Leader John Boehner (Ohio)) . . . speaks for itself. The criminal justice system is working exactly as it's supposed to and conservatives don't like that one bit.
Kruthammer thinks we should place captured terrorists in military custody as unlawful enemy combatants. Damn, just when I thought our country (and the Supreme Court) realized that creating a second-class for people accused of certain crimes was unworkable and unconstitutional, it's baaccckkkk.
Krauthamnmer argues that
one of the six World War II German saboteurs captured in the United States, tried by military commission and executed was a U.S. citizen. It made no difference.
He's wrong.
Krauthammer is referring to Ex parte Quiran, later described by Justice Felix Frankfurter as "not a happy precedent."
That's because President Roosevelt issued an Executive Order and Proclamation authorizing a military commission to try the German soldiers--two of whom had a plausible claim of U.S. citizenship. In a suit to determine the propriety of military jurisdiction, the Court sided with the Roosevelt administration, holding that the President's order did not conflict with the statutory requirements of the Articles of War.
What Krauthammer neglects to mention (as do most revisionist accounts of Quiran) is that it was a hurried, after-the-fact decision written to validate the legality of Roosevelt's military commission. The Court had little choice but to affirm the President's order because . . .
by the time it published its full opinion . . .
six of the eight defendants had been executed.
More details regarding the unjustifiable "enemy combatant" status are available on the Government Accountability Project website.