Shahzad Proves Nothing But It Wasn't Luck

By Benjamin Wittes
Wednesday, October 6, 2010, 7:38 AM

Josh Gerstein of the Politico has an excellent story on the dumb debate going on over how to read the life sentence Faisal Shahzad received yesterday.

Here's the White House:

“We are pleased that this terrorist has been sentenced to spend the rest of his life in prison, after providing substantial intelligence to our interrogators, and a speedy civilian trial,” White House spokesman Nick Shapiro said.

“We tried the case in a civilian court, we were able to use everything that he said and everything that we uncovered for intelligence collection purposes. His trial served no propaganda purpose for al Qaeda, and only underscored the strength of our justice system,” Shapiro added. “The case shows once again how our values and the rule of law can keep us safe against those determined to do us harm on behalf of terrorist organizations overseas."

Here's Rep. Peter King:

“The case worked out well. I had questions about it. There was a bit of luck involved here," said Rep. Peter King (R-N.Y.). “He was advised of his rights and kept talking. If he had not, I don’t know what would have happened."

If Shazal, a naturalized U.S. citizen and college-educated professional, “was more sophisticated or more trained, or if he had not talked there could have been a follow-up attack, he could have been part of a larger conspiracy," King said, adding that Shahzad could have been convicted on the evidence alone. "It worked in this case, but to me it’s too much of a risk to take in every case.”

And here's Liz Cheney:

Liz Cheney of Keep America Safe, which advocates tough treatment of terror suspects, said the administration failed because Shahzad managed to travel to and from an overseas training camp, build a crude but potentially deadly bomb, drive it to Times Square in an SUV and detonate it without authorities knowing what he was up to.

“Americans expect their government to disrupt plots and defeat terrorists before they can attack us. The Times Square bomber's attack failed not because it was thwarted, but because his bomb failed to detonate,” said Cheney, the daughter of former Vice President Dick Cheney. “Being lucky is not a responsible counterterrorism strategy, and convictions in civilian courts will not keep this country safe."

You get the idea. At the very end of the story, Josh quotes me saying that the case really doesn't prove anything. Let me elaborate a bit.

To say, as many liberals and the administration are now saying, that Shahzad proves that the criminal justice system works in high-stakes counterterrorism crises is very silly. It proves at most that the criminal justice system sometimes works in such cases, a point that nobody serious doubts. The government has three big interests when it makes an arrest in a crisis setting like this one. It wants short-term intelligence. It wants to incapacitate an extremely dangerous person, and it wants to punish him. These interests can conflict at times, but they are not inherently in conflict. And when a suspect both talks freely and pleads guilty, the government's interests align so neatly that the case simply doesn't test the system. Any system is going to look good when faced with a suspect who wants to cooperate.

That said, it is not just--or chiefly--luck when this happens. And those who denigrate the criminal justice system's capacity to handle these cases misunderstand a few big things. For present purposes, the most important is that people on the inside of a case know in real time whether the key interests are aligned or at odds. Peter King and Liz Cheney were not in the room when agents were interrogating Shahzad, and thus were left guessing as to whether he was in a cooperative posture or whether they faced an actual conflict between the need to learn pronto who had sent him and the need to preserve a criminal case against him. When the system is working, and you know it is working, and you stick with it, the end result is not just luck but the fruits of good strategic judgment and performance as well. In other words, it was always wrong for Republicans to attack the reading of Miranda rights to Shahzad. Without knowing what's going on in the room, it's impossible to know whether a given investigative tactic is obviously the right move, a reasonable risk, or a dumb risk.

The truth of the matter is that for the domestic crisis detentions, particularly involving a U.S. citizen like Shahzad, there is no viable alternative to the criminal system. Military commissions are off limits for citizens. Enemy combatant detention has always been a last resort--notwithstanding current Republican mythologies. The front line always has been and always will be the court system. The question is whether that system can be better optimized to give the government a little added flexibility in the first few hours and days following an arrest. I believe such a reform is possible, constitutional within existing doctrine, and desirable--though I don't want to oversell how much difference it would really make. But this case doesn't argue strongly for my beliefs either. The core of the change that I believe appropriate, after all, would allow the government to delay presentment of a suspect to a magistrate for a brief time in certain instances. But Shahzad waived early presentment on his own, giving the government de facto precisely the grace period that I believe it should have even with a recalcitrant suspect. The case, in other words, proves very little in any direction.

Here's my bottom line: I heartily congratulate all of the personnel involved in making this case work out so well; I do not denigrate the accomplishment as luck; and I do not pretend there existed some magical alternative system that would have better optimized the government's interests at stake. I also believe it would be a good idea to augment law enforcement's flexibility in in the future to maximize the chances of a similarly happy outcome in future crisis detention cases. But I do not claim that this case proves I am right on this point. Nobody else should be claiming the case proves them right either.