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Judge H. Lee Sarokin Headshot

Should Terror Suspects be Mirandized?

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While Republicans decry the encroachments into the Constitution by the federal government's social programs under a Democratic administration, some have no hesitancy in encroaching on the Bill of Rights in the name of national security. With the arrest of Faisal Shahzad, the Times Square bomber, they have renewed their clamor that terrorist suspects should not be given Miranda warnings or other constitutional rights; should be subjected to "enhanced interrogation"; and be processed in military tribunals rather than civilian courts.

The entire argument is predicated upon the presumption of guilt. Yes, in this case, it appears that we have caught the perpetrator red-handed. The evidence of his guilt is overwhelming, so the argument for treating him differently has some visceral appeal. But let's test it by the facts of this very case. For a considerable period of time, law enforcement (and I imagine a vast majority of the world) suspected the man seen on a security camera taking off and changing his shirt and looking furtively at the car with the bomb in it was the terrorist. He turned out to be completely innocent, but for some time, he was clearly a suspect. If arrested, should he have been given his Miranda warnings and other constitutional rights; should he have been subjected to "enhanced interrogation"; should he have been processed in a military tribunal, if they decided to proceed against him?

We cannot have two systems of justice depending on how strong the case is against the suspected terrorist -- the person probably guilty forfeiting constitutional rights and the person possibly innocent retaining them. And the fact is that the FBI could have questioned Mr. Shahzad without advising him of his rights under the "public safety exception" for a considerable period of time, which apparently they did. There is also the unsubstantiated assumption that terrorist suspects are otherwise unaware of their rights until advised of them, and it is that advice which suddenly terminates their cooperation. It is certainly desirable that as much information as possible be obtained from someone involved in terrorist activity, but the Constitution does not carve out exceptions for those who are clearly or probably guilty. There is current discussion about enacting laws which may give law enforcement greater latitude when dealing with terrorist suspects. But we should proceed with great caution in doing so. Neither anger nor fear is sufficient to diminish constitutional rights which protect us all -- the innocent along with the guilty.