A TWOFER FROM ANDY McCARTHY ON TERRORISM AND THE LAW
NRO — The Corner
Wednesday, May 05, 2010
Why Was the Shahzad Complaint Made Public? [Andy McCarthy]
As Dan points out below, all indications are that Faisal Shahzad is cooperating in the government’s investigation into the Times Square bombing attempt. That was apparent from the New York Times report earlier today, which described the arrests in Pakistan of several suspects. Besides the fact that the information supporting these arrests almost certainly came from Shahzad (and the FBI did, after all, leak that he was being cooperative), there was this passage in the Times story: “The authorities charged [Shahzad] as a civilian, but he did not appear in court and no hearing has been scheduled.”
A little criminal procedure: Faisal was arrested on a complaint, not an indictment. A complaint is a description (under oath, usually by a law enforcement officer) of the offense(s) the government alleges and of the factual basis for concluding that there is probable cause to support an arrest on those charges. When a defendant is first brought to court after being arrested on a complaint, the proceeding is called a “presentment,” not an “arraignment.” Because the charging instrument is merely a complaint, the defendant is not asked to enter a plea of any kind. Instead, the court (in federal court, by a U.S. magistrate-judge) advises the defendant of the reason he has been arrested, reviews the complaint to make sure there is probable cause, determines whether the defendant has retained counsel or needs to have a lawyer appointed (at public expense), sets bail (or, if the government is seeking detention, holds or schedules a detention hearing), and schedules a “preliminary hearing.” (In the Southern District of New York, my old office and the venue for Shahzad’s case, preliminary hearings never actually occur. In a preliminary hearing, the government must present evidence before a judge to establish the probable cause alleged in the complaint; it is not necessary to hold such a hearing if the government obtains an indictment on or before the hearing date. In the SDNY, the government always goes to the grand jury for an indictment in lieu of a doing preliminary hearing before a judge.)
Like most constitutional and statutory rights, the defendant can waive a his right to a presentment. It is sensible to do that only if the defendant is cooperating.
In the ideal situation, the agents grab a suspect, no one else knows about the arrest, as far as the defendant’s confederates know it’s business as usual, and therefore the defendant can make recorded phone calls, wire up for meetings, and help the government build a solid case against his coconspirators.
With a notorious defendant, however, or with any defendant who has been apprehended in a very public place, it is not possible to keep the arrest secret. Still, if you can get the defendant to cooperate, there’s a lot he can do for you in those first hours and days before any of his confederates realize he is cooperating. The trick is to clamp down as much as possible on the information the defendant is providing so the agents can exploit the information, secure more evidence, and make more arrests. Suspects who realize that they’ve been compromised tend to destroy evidence and go on the lam.
So here’s what I don’t understand: Why did the government file a public complaint in this case?
If the defendant waives his right to be presented in court, there is no need to file a complaint. The complaint only comes into play at the presentment, when the court determines whether there is probable cause to support the arrest. If there is no presentment, there is no need to file a complaint.
This complaint lays out valuable information: It tells the world Shahzad has confessed (which means he has spoken cooperatively and probably truthfully to the government, and that for all anyone knows he is still doing so), it describes his contacts in Pakistan, and it lays out other details that would be of great interest to anyone else who is involved in the plot and would naturally want to know what an arrested plotter is telling the authorities.
Now sometimes, these revelations are unavoidable. When you make an arrest, you do so assuming you will have to reveal the basis for the arrest in a public complaint. You never assume cooperation. You calculate that getting a dangerous suspect off the street is worth the price of disclosing your evidence. And sometimes a defendant will not make up his mind to cooperate until after the complaint has already been filed — in which case, to make the cooperation more effective, everyone acts like it’s a normal arrest situation: the defendant appears in court, the presentment is held, counsel is appointed, a bail/detention hearing is scheduled, and no one lets on to the outside world that the defendant and his lawyer are actually spilling the beans to the prosecutor and the agents.
But in Shahzad’s case, neither of those scenarios is in play. He was arrested late on May 3 and the complaint was not filed until the next day. In a sensitive case, complaints are usually filed under seal and not unsealed until the defendant appears in court. Since Shahzad obviously waived his right to be presented, there was either no need to write the complaint yet or, if it was already written and filed when he started cooperating, there was no need to unseal it. Further, if Shahzad started cooperating only after the public filing of the complaint — which doesn’t seem possible under the circumstances — the thing to do would have been to go ahead and have the presentment in court, thereby doing what you could do to avoid tipping the bad guys off about the cooperation.
So why unnecessarily release a complaint that lays out valuable information and then refrain from holding the presentment? By doing that, the Justice Department has told the world — including anyone who might have been working with Shahzad — both what Shahzad has told investigators and that he is continuing to help investigators. Why would we want to do that?
The cynic in me is suspicious. Needlessly making the complaint public may harm the ongoing investigation, but it is savvy public relations. It gives the Justice Department and the administration a script with which to portray themselves as super-competent and the civilian justice system as so effective that Bush-era relics like military detention are unnecessary. I hope there’s a better explanation than that. If there’s not, then the administration has prioritized scoring political points over effective investigation and intelligence gathering.
Wednesday, May 5, 2010
Amend the AUMF to Include All Branches of the Taliban [Andy McCarthy]
I’ve been out of pocket for a few days, traveling through bad weather and speechifying at the Fifth Circuit Judicial Conference in Mobile — where the people, including many big Corner fans, could not have been more gracious. As a result, I haven’t had time to weigh in much on the Times Square plot, though I will have a column on it soon.
I don’t agree with the way the administration has handled the case, for reasons I’ll explain in the column. At the same time, I don’t think what they’ve done is unreasonable. The case is complicated by two things: (a) the defendant, Faisal Shahzad, is an American citizen, and (b) his ties to the enemy are murky at best. For now, it’s the second point on which I want to focus.
“The enemy” is highlighted because we need to sort out a few things. There is “the enemy” by which we are confronted in a longterm civilizational struggle, and that is Islamism (sometimes called “political Islam,” radical Islam,” “sharia Islam” and other variations). All Islamists are dedicated to the spread of sharia (Islamic law), which they see as the necessary precondition to Islamicizing a society. The method of spreading sharia is jihad — which can be violent or non-violent (i.e., there’s no need to fight when the other side capitulates).
For our legal purposes, we should see the violent jihadists as comprised of a greater group and a subset of that group. The greater group, very simply, consists of all Muslims who commit and support terrorism. The subset consists of the particular terrorists, terrorist entities, and terrorist nations that are described in Congress’s Authorization for the Use of Military Force (AUMF), dated September 18, 2001. While it is appropriate colloquially to call both these groups as “the enemy,” only one is “the enemy” for purposes of the laws of war – and that is the latter, subset group.
Why is this so important today? Well, to detain someone as an enemy combatant, he has to fit the AUMF definition of the enemy. Al Qaeda members do, but, for example, if an Islamist cell sprang up tomorrow in Michigan, and it was sympathetic to but otherwise unconnected with al Qaeda, its members would not – if they tried to bomb a city, they would have to be handled as regular criminal defendants.
According to the latest revelations, Shahzad, a native of Pakistan, may have been working with elements of the Pakistani Taliban in the Times Square attack. There is a very good argument that the Pakistani Taliban is not included in the AUMF’s description of the enemy. According to the AUMF, force is authorized against:
those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
To be sure, there is plenty of cross-pollination and collaboration between the Afghan Taliban and the Pakistani Taliban. Indeed, Baitullah Mehsud, the leader of the Pakistani Taliban until what we believe was his death in a U.S. drone attack in August 2009, was a member of the Afghan Taliban (having gotten his start, like many Pakistani jihadists of his age, by fighting with the Afghan mujahideen against the Soviets). That said, though, the two organizations are generally taken to be separate and independent – and, while the Afghan Taliban came into being in the early nineties and harbored al Qaeda from 1996 through October 2001, most experts agree that the Pakistani Taliban (Tehrik-i-Taliban Pakistan) did not start until 2007, in reaction to the Pakistani military’s incursion into the country’s tribal regions (see, e.g., this Council on Foreign Relations analysis, here).
There is currently great gnashing of congressional teeth, particularly on the Republican side, over the Obama administration’s decision to treat Shahzad as a regular criminal defendant and thus to give him Miranda warnings and counsel after a few hours of non-Mirandized interrogation. I agree that the administration should have held Shahzad as an enemy combatant until it could sort out whether he was, in fact, with the enemy. But what if it turns out that Shahzad is affiliated with the Pakistani Taliban but has no ties to the Afghan Taliban or al Qaeda? There would then be a profound legal question about whether we had the authority to detain him as a war prisoner – and the problem would be exacerbated by the fact that he is an American citizen.
There is a simple solution. The AUMF should be amended to include the Taliban organizations in Pakistan and Afghanistan. The current AUMF is nearly nine years old. A lot has changed. Back in 2001, we did not want to go to war with Afghanistan and its then-government, the Taliban. We did it only because they refused to hand al Qaeda over to us. Now, having been chased out of Pakistan, much of al Qaeda is holed up in Pakistan, colluding with Pakistani Taliban, Afghan Taliban, and other Pakistani terror groups. Meantime, our primary reason for still having our forces in Afghanistan is to ward off the Afghan Taliban – in the hope that the new Afghan government will mature, become independent, and resist giving al Qaeda safe-harbor in the future.
The AUMF should be amended to reflect this current reality of the war. We are conducting military operations in Pakistan. Yes, they can be justified under the old AUMF (and the president’s constitutional authority), but there is no good reason not to make things more clear and clean. It would not only bolster the legitimacy or our operations, it would also be an opportunity for Congress to endorse military detention and military commission trials for operatives – including American citizens – of the different Taliban organizations. It would not compel the administration to use military detention, but it would give the president the clear option to do so.
And if he made use of that option, even for a few weeks in any given case, we would not have to have a divisive national Miranda debate every time a terrorist potentially affiliated with our wartime enemies attempted to attack us.
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