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.

Leader of a Movement? Or a movement of leaders?

The title here is awkward for a reason. You notice the first question is capitalized while the second is not. In the United States, there is a common social desire to designate leader, someone that represents your beliefs and has the intelligence, skill, and power to make things happen. This is not a political split, both left and right have this among them. But there is also a second common social desire. On both left and right, there is a desire to be part of a movement, part of something big that has no "leader" or "authority". The question is: are you a person who seeks out a leader first and then join his movement? Or are you a person who seeks out the movement or perhaps starts the movement?

The Democratic Party has had a love affair with icons or the leader type. In the modern era it started with John F. Kennedy. He came about in an age of television, which gave greater emphasis to aesthetics. Combining this with gifted oration, you had an icon. JFK had substance. Democratic leaders after that did not.

Today it is clear Barack Obama replaced Hillary as the Democratic icon. The Party rallied around a cult of personality for one and then the other. Obama lacked substance, but that didn't matter, he was the chosen one. Hillary had some substance, but her image was not as compelling and so the Party switched horses so to speak. He won the Presidency on his cult of personality and the aesthetics, not substance. They should be regretting it. Few can argue otherwise today.

It is not just Presidents either. In Congress, the Democratic Party is top down. Speaker Pelosi and majority leader Reid rule each chamber from the top down. The centrist leaderless movements or factions within each are cast aside for challenging the Obama-Pelosi-Reid leadership. Whether it is Blue Dogs or Bart Stupak. The bottom of the party that was not behind the top's agenda was forced to march forward with it.

Republicans are guilty as well. Republicans worship Ronald Reagan. An iconic image with substance, the red JFK if you will. In 2008, twenty years after he left office, Republicans quickly wanted to find the next Reagan. Problem was none were available. McCain was the top choice because he was an independent "maverick" type. People thought he was a better icon then Romney, Huckabee, or Guiliani. they were right. He selected another potentially great icon as his running mate, Sarah Palin. In the end, Obama proved the better one however.

What has happened afterward has been sad. After McCain's defeat, mainstream republicans are constantly "searching for a new leader of the party". They have been closely following Palin, Romney, Pawlenty, Steele, Bachmann, and Gingrich. But none of them will be the leader of the party. Palin, to her credit, does not appear she wants to be the new leader of the party. She decided to forego the typical track of serving out her term and then running for federal office in 2010. Instead she has joined the media side on Fox News and has become a vocal voice for grassroots groups and is participating in speaking engagements for other organizations. Cynics can argue she is trying to become a populist leader and will run for President in 2012, and maybe that is true, but it is a very unconventional path. Some top republicans are thus wrongly pessimistic or nervous because they have yet to find a new leader.

The Tea Party is the opposite. Members are not looking for a leader. They don't have a chairman, a president, CEO, delegates, central committee, or anything of the sort. In fact, try and find the national tea party website, it does not exist. They are not interested in finding a leader or coalescing in any centralized structure. Those that are part of the Tea Party Movement want to be part of a headless movement, not the bottom-rung of a pyramid organization. The Tea Party has no hierarchy to speak of.

There are drawbacks. Without a leader, there is no coherent grand strategy. The Tea Party does not have specific electoral or political goals. There is the "Contract From America" and various groups making endorsements but it is not unified in any single strategy. This can result in tactical mistakes, such as running multiple candidates and splitting the vote, allowing the opponent to win. Another possibility is one regional group at odds with another. This has yet to happen however. Despite this drawback, the movement can still succeed.

Tea Partiers see politics differently. They see politicians as levers that they pull, not the other way around. They have their favorites, they choose candidates and vote for them, but now a days they are prepared to vote them out just as quickly should they fail. They dislike both parties, they are not partisans at all. In particular this will happen with the Republican Party. Incumbent Republicans are being challenged from within their party in Arizona, Utah, and Florida. The Republican Party itself is no longer supplying the leadership and the direction. It is the voters and supporters. That makes things unpredictable and incoherent in the long term, but not the short term. In the short term, this can dramatically strengthen the Republican Party and give it better direction. By 2012, the Tea Party and all other associated movements will have to select their choice as the next President. Clearly they don't want Obama back. It is then they will be forced to designate an actual leader.

The changes in the country over the last two years has shifted a major part of the country away from this "cult of personality" or search for a leader of a movement. It is instead trying to become a movement of leaders. It is difficult and chances of success are typically low. But I think in 2010, they might pull it off dramatically changing the composition of the House and the Senate. We could see a different Washington in 2011-2012 but if the movement is to succeed they must continue into 2012 in order to change another third of the Senate and the President.