The Time Square Bombing: Failure and Treason

The United States has moved pretty far away from prosecuting the crime of treason. There are probably a number of reasons and that part is not important. The crime is still on the books and can be used. Faisal Shahzad (the bomber) is technically a U.S. citizen, which makes it difficult to treat him as an enemy combatant during the initial interrogations. He was read his Miranda Rights at one point after being questioned for several hours under some bizarre public safety exception. The exceptions allows witnesses to be interrogated with Miranda warning in certain cases.

Miranda is part of an American citizen's Constitutional Rights. Shahzad is an American, therefore he must be given these rights. The public safety exception seems murky but if that works, I see no problem with the Government using that to get at Shahzad before giving him the right to remain silent and right to counsel.

That is why I am suggesting something not that different from Lieberman: if you are charged with treason, I think your citizenship is effectively forfeited for the purposes of custody, interrogation, and evidentiary rules. Certainly some standard would have to be met before the treason charge would lead to forfeiture of citizenship or Constitutional Rights, that is complicated as well. I believe Shahzad's actions, which are treason, should be effective grounds to revoke his citizenship and eliminate the Constitutional problems here.

In the Constitution: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Most politicians and experts have not mentioned treason.

Many, including Sen. McCain, argue that reading Shahzad his Miranda Rights was a mistake and he should have been treated as an enemy combatant from the start. That is highly problematic. I have trouble with the U.S. Government having the authority of designating U.S. citizens as enemy combatants in any situation. Of course if Shahzad was stupid enough to admit it from the start, at that point he should've have been reclassified an enemy combatant and a traitor.

There is an argument that he wasn't a "real" citizen (naturalized through marrying American citizen) and therefore his Constitutional Rights can be more easily thrown out, but I reject that. Once you are an American, you are an American. There is no hierarchy of how "American" you are. The fact that he married to expedite the naturalization process is troublesome but more directly calls into question our policies of naturalization. It does not argue for treating naturalized citizens different from U.S.-born citizens. That would takes us down a ultra-nationalistic road that flies directly into the face of our immigrant foundation as a country.

So Shahzad is an American. How can he be an enemy combatant? Well, in World War 2 if an American citizen went to Germany and swore allegiance to them, and even fought with the German Army, how would we treat him? Well, first it would be easy for us to label him an enemy combatant because he wears their uniform. That is not so easy here. Terrorists don't wear uniforms and Shahzad certainly did not. If Shahzad had the nerve and the stupidity to claim he was fighting in service of the Pakistani Taliban, its over. He has indicated his allegiance to an American enemy. He is an enemy combatant.

Lets say he didn't. Lets say his lawyer got there in time to shut him up. How do we prove an American citizen is an enemy combatant without a uniform or an admission? Until we find a foreign-terror connection, he is just an attempted-murderer and a "domestic" terrorist. Can domestic terror suspects be treated as enemy combatants? I don't know the answer and am uncomfortable with the implications of this. If any law enforcement agency had evidence proving his links to the Taliban prior to his arrest, he should've been classified as an enemy combatant from the start, with a charge of treason to boot.

Unfortunately a lot of this comes down to timing. What did we know and when did we know it? The details that answer these two questions have not fully come out yet. Therefore, I think Sen. McCain, Sen. Lieberman, and others criticizing the process by which Shahzad was interrogated are jumping the gun (unless they know something we don't). On the other side, those rushing to applaud the federal, state, and local law enforcement handling of the situation should also show pause until we see exactly how things developed.

To be clear, this was not a success. Shahzad was able to drive an SUV full of explosives into Time Square and walk away. Had he adequate knowledge of explosives, he would have killed hundreds. We failed to stop him prior to the attack. He was able to execute just as the underwear bomber did on that flight. We should not see success in capturing these guys after the fact. We should be very worried that we failed in both instances to prevent the attack. The fact that no one died is not a testament to our counterterrorism efforts, but only our good fortune that many of these guys are fucking idiots.