AH, yes, the Grand Old Notion that the American Right is competent and effective, despite all evidence pointing the opposite direction, because it talks like John Wayne doing An Evening with Richard Nixon. Brings back a lot of memories.
Leave us note at the beginning that Dr. Krauthammer is the intellectual force behind Bush Derangement Syndrome, a complex set of pathologies he and his colleagues at the Goldberg Flatulence Clinic identified about twenty minutes into Worst Presidency in History. And that's in his (thankfully non-practicing) professional capacity. Gives a little perspective on his amateur Constitutional Law rulings.
[We might, as long as we're at it, ask where, in (another) week dominated by his colleagues flying off the rails over immigrants, non-bombings, and, in perpetuity, The Socialism, Krauthammer's keeping his update on BDS-like manias? I'm sure the clinical world is getting anxious.]
"[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?
Good point. We might've had to wait an extra twenty minutes for The Pakistani Taliban, Al-Qaeda in Mesopotamia, or Al-Sharpton in Flatbush to claim credit. No worries, though; if there's one thing this country's still good at it's drumming up blind terror and blinder analysis.
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.
Oh, surely some of the credit goes to the thousands of dedicated bloggers who dropped everything at the merest suggestion the perp was a lone white guy.
Look, what is any of that supposed to mean? Who else would deserve the credit? He was caught, evidently, by standard, detail-oriented police work aided by the sorts of resources we're paying billions in Homeland Security Bucks to maintain. A job well done; the timing was partly due to luck. Appending this stuff to the Right's Jack Bauer fantasies accomplishes exactly nothing. (Okay, it furthers the cause of conflating pissed-off but incompetent homicidal maniacs with The Legion of Doom. So I take that back. It accomplishes less than nothing.)
As for "invoking" the public safety exception to Miranda, they didn't and don't. They may have acted under the exception; Holder said they did, but that was after he'd come under fire because an apprehended criminal, and US citizen, was treated like an apprehended criminal and US citizen. You can question a subject for hours or days without reading his Miranda warning, but at the risk of losing before the bar whatever evidence you obtain. You don't "invoke" the public safety exception to do so; you use that in court as a justification for having done so. Given the timbre of such cases over the past eight years, and the extra-Constitutional powers claimed, or merely grabbed, by the Executive branch, the authorities already operate with something between a reasonable belief and a dead-on certainty that the suspect isn't going anywhere for a decade or more anyway.
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?
What about the very abuses the Constitutional protections are designed to prevent?
Why is that never part of the equation? Krauthammer's argument applies to any sort of criminal activity. Why not use the public safety exception to ignore Miranda altogether? The possibility for unnamed, unready, and yet unplanned conspiracies is practically infinite, and it's not restricted to "enemy combatants".
This is the worst sort of libertoonian logic wedded to Nixonian politics. It's a simple thing to propose draconian measures when you think they'll be restricted to your enemies. And it's particularly easy when you get to announce that your plan is effective, and you're not required to even suggest how such a thing is worded to assure it's only little brown men who get the pike.
John McCain's been in Congress since before 9/11. Joe Lieberman, too (have I thanked you lately, Connecticut?). Where's the Constitutional amendment? Where's the legislation from the Homeland Security committee? This is another goddam Flag Burning amendment, something designed to swing at, miss, and let the bat fly out of your hands and hit a Democrat with. How did an entire party turn into ratfuckers?
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.
Seven-hundred-fifty words on Constitutional law from "the most important conservative columnist" and he's never heard of a confession being ruled inadmissible, over Miranda or anything else? Have I thanked you lately, Washington Post?
Second, even assuming that by not Mirandizing him we might have jeopardized our chances of getting some convictions -- so what?
Yeah, I'm sure all those members of the Senate appropriations subcommittee would've leapt in unison to Eric Holder's defense.
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?
Wait. Do either of those options come with "Locking up Charles Krauthammer for the public good"? Or pie?
But let's assume you're wedded to the civilian law-enforcement model, as is the Obama administration.
That's the same Obama administration which has escalated the Afghan war and spread it into Pakistan in search of these guys, right? Yeah, total wimps.
At least make an attempt to 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.
I've got a better idea. Why not use the existing Constitution (you know, the one you guys are always going on about how the Original Intent of the Founders is the only proper way to interpret it?) and simply make the War on Terra a declared war? Then you could treat them as civilians in violation of International Humanitarian Law, and they'd be subject to criminal prosecution under the domestic laws of the United States.
Oh. Never mind.