As published for The Wall Street Journal on May 13th, 2010:

The lack of a court appearance suggests prosecutors are getting information. But they shouldn’t have to improvise.

The Obama administration’s announcement that it will seek legislative changes to Miranda warnings for terrorism suspects is a signal event. On Sunday, Attorney General Eric Holder said, “We need to give serious consideration to at least modifying the public safety exception” to the Miranda law to give law enforcement officials “the necessary flexibility” to question terror suspects.

In other words, the Miranda rights to remain silent and have an attorney present during questioning would be suspended for terror suspects believed to possess information that could prevent an attack.

The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.

This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation.

This is likely because the administration, guided by Mr. Holder, doubts whether the president has the authority to hold a U.S. citizen as an enemy combatant. This is clearly an incorrect view of the law. No less an authority than the U.S. Supreme Court, in Hamdi v. Rumsfeld (2004), resolved this question: The president has the authority to hold even U.S. citizens as enemy combatants if he believes they are working with the Taliban, al Qaeda or associated terrorist groups.

Mr. Holder recently announced that Shahzad was working with the Pakistan Taliban, so Mr. Obama is within his rights to order him held as an enemy combatant. The Supreme Court has not addressed whether a U.S. citizen arrested on U.S. soil may be held as an enemy combatant, but the federal Court of Appeals for the Fourth Circuit answered in the affirmative in Padilla v. Hanft (2005). This is the only operative judicial opinion on the issue and provides ample legal grounds to designate Shahzad as an enemy combatant.

Read the full article here

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