Shortly after the media broke the news that authorities had arrested Faisal Shahzad as a suspect in the May 1 Times Square bombing attempt, conservative lawmakers began complaining that even though he’s an American citizen, authorities should deprive him of his Miranda rights. Sen. John McCain (R-AZ) said that Mirandizing Shahzad would be “a serious mistake,” and Rep. Peter King (R-NY) said, “Did they Mirandize him? I know he’s an American citizen but still.” Sen. Joseph Lieberman (I-CT) suggested that Congress should perhaps create a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their citizenship.
In today’s Senate Homeland Security and Governmental Affairs Committee hearing on “Terrorists and Guns,” and Sen. Lindsey Graham (R-SC) said he wholeheartedly agreed with his colleagues and wanted to write legislation that would allow authorities to deprive them of their rights:
GRAHAM: I want to stop reading these guys their Miranda rights. Me and Peter are so much on board here. … Nobody in their right mind would expect a Marine to read someone caught on the battlefield their rights. You catch them and you interrogate them lawfully to gather intelligence. Your special unit is probably the best in the world at this, but I don’t think it’s smart for us to say the homeland is not part of the battlefield.
You get to America, you get a much better deal, you get rewarded. If you can be caught in Pakistan, intelligence-gathering can happen with intelligence agencies without your Miranda warnings being given. Why should you get a better deal when you get here? Even if you’re an American citizen helping the enemy, you should be viewed as a potential military threat, not some guy who tried to commit a crime in Times Square.
So I look forward to working with the New York City Police Department, the mayor of New York, Peter King, to devise a law that recognizes we’re at war. … [T]hat you would have the opportunity to hold this suspect, because they represent a military threat to our country even though they’re a citizen, and be able to gather intelligence before you did anything else. … So we need a law that would allow you to go to a judge somewhere — like a FISA judge — and hold a suspect like this and working with the intelligence officials of this country, to gather intelligence, and then make a good prosecutorial decision.
Graham was on active duty in the Air Force as a Judge Advocate General, the corps that acts as legal advisers to the U.S. military. He is now in the Reserves and serves as a Senior Instructor at the Air Force JAG School. In light of his role, it’s disturbing that he would be so willing to distort what Miranda rights are and call for getting rid of them in certain instances. Graham and his conservative counterparts are under the mistaken impression that Mirandizing a suspect grants special rights, when all it does is inform someone of existing rights. As Matt Yglesias adds, “And the whole reason cops mirandize suspects is that if you don’t, you risk having your evidence thrown out of court. If you gather all the information before mirandizing, you could be throwing the whole thing into doubt.”
The record also doesn’t show any evidence of Miranda rights being counterproductive to gathering intelligence. Authorities Mirandized Shahzad, who is reportedly continuing to cooperate and provide information.
It’s important to remember that Shahzad has not yet been convicted of anything. People like Graham want to strip a suspect of all his rights as a U.S. citizen. As Yglesias notes, “You can’t have a system where a cop comes up to me and says ‘you’re a terrorist, therefore you have no citizenship rights, therefore I’m putting you under arrest and you don’t get any due process and now it’s off to jail with you — no rights, no warning.’” Does Graham really want to make all of the United States into the equivalent of a battlefield in Pakistan?