Lessons From the Times Square Bomber

Why the sentencing of Faisal Shahzad doesn’t prove that civilian courts are the best venue for dealing with jihadists.

This week’s sentencing of failed Times Square bomber Faisal Shahzad to life imprisonment would seem to offer little evidence that civilian courts are the ideal battleground to fight jihadist terrorism.

After all, the swift outcome to Shahzad’s trial owes less to the choice of venue than to the Pakistani-born Shahzad’s unapologetic commitment to the terrorist cause. That commitment prompted him not only to offer a forthright confession of his botched attempt to explode a bomb-laden van in New York City and to cooperate with authorities but also to plead guilty to the charges against him and even to issue a parting declaration of war against non-Muslims at his sentencing.

Yet, Shahzad’s zeal to claim credit for his attempted crime cannot disguise the fact that the proceedings could have gone very differently. Like his predecessor Zacarias Moussaoui, who made a mockery of his five-year trial prior to his eventual sentencing in 2006, Shahzad could well have chosen to stymie prosecutors and to draw out the case for years. That he didn’t is a testament to prosecutors’ by-no-means-reliable good fortune in this case.

It’s nothing short of bizarre then that the New York Times would seize on this week’s fortuitous result as a vindication of the criminal justice approach favored by the Left and partially endorsed by the Obama administration. In the Times’ judgment, that approach is self-evidently superior to the military commissions system put in place by the Bush administration and kept in place, with less fanfare, by President Obama.

Supposedly, Shahzad’s case confirms the wisdom of the former approach. As the Times tells it, Shahzad was arrested, read his Miranda rights, then cooperated with investigators and entered a guilty plea with a mandatory life sentence. “All of this happened without the Federal Bureau of Investigation and the New York Police Department breaking laws or violating Constitutional protections,” the Times gleefully editorializes.

That summary of the case may be flattering to the paper’s politics, but it is also blatantly revisionist. In fact, Shahzad was not initially read his Miranda rights. Instead, he was questioned by authorities under the public safety exception to the Miranda rule. Only once he supplied what authorities later called “valuable intelligence and evidence” – and only once it became clear that he would continue to do so – did they finally grant him Miranda rights. It’s fortunate that in the event he did choose to cooperate with authorities, but in no way does that bolster the Times’ preferred strategy for fighting terror. As former federal prosecutor Andy McCarthy has repeatedly pointed out, more often than not terrorist suspects choose not to cooperate with authorities once presented with that option.

Indeed, the Times does not even pause to consider the obvious questions raised by the trial. What if Shahzad had spurned cooperation? Or what if his confession had been deemed inadmissible, jeopardizing the case against him? That is not a merely academic question. As McCarthy points out, the trial of al-Qaeda operative Ahmed Ghailani may run aground on just such a legal technicality. Although Ghailani has confessed to the 1998 bombing of the U.S. embassy in Tanzania, and although there is an important witness in the case, his trial has been postponed and his conviction is no longer assured. It is, as McCarthy notes, a prime example of the United States “intentionally tying our hands behind our backs and running an unnecessarily high risk of acquittal in a case involving a war criminal.”

Overwhelmingly, the American public shares that assessment of the risk. Polls show that solid majorities favor trying terrorists in the military commissions system rather than in civilian courts. Even the Obama administration, despite its occasional grandstanding on behalf of civilian trials, has recognized the merits of the military commissions system enough to keep it in place. And while the successful prosecution of Faisal Shahzad is to be applauded, using civilian courts to deliver justice remains a dangerous gamble. If the Shahzad case reinforces any lesson, it is that no one serious about protecting the country in wartime would choose to rely on the good faith of jihadists to guarantee national security.