Shahzad Appears in Court after 2 Weeks, Becomes Canvas for Due Process Debate

By Seth Freed Wessler May 19, 2010

Pakistani-born US citizen Faisal Shahzad, 30, (R) is pictured in a courtroom sketch during a brief federal court appearance May 18, 2010 in New York City. (Courtroom sketch by Christine Cornell/Getty Images) Faisal Shahzad, the man who allegedly attempted to detonate a bomb in Times Square two weeks ago, appeared in court for the first time yesterday. Shahzad spent two weeks behind bars before coming before a federal judge. Crime suspects are usually guaranteed an appearance in court within two days of arrest, but according to prosecutors, Shahzad waived that right, which explains the delayed appearance. Questions remain, however, about whether the delayed hearing also represents an informal change in practice on the part of the Obama administration. Shahzad’s case has been the canvas for a political debate over the rights of terrorism suspects. The Obama Administration last week announced its intent to work with Congress to change the Miranda rule–which requires cops to inform a suspect of their rights to a lawyer and to remain silent before interrogation–in terrorism cases. Those in favor of changing the Miranda requirement argue that terrorism requires a different set of rules. But Shahzad has consistently talked to investigators, so the logic here is questionable. Shahzad reportedly decided on Tuesday that he wished to be represented by an attorney and no longer wanted to answer interrogator’s questions. The decision spurred his arraignment. But the delayed appearance in court may be part of a larger effort by the Obama administration to alter due process rules for terrorism suspects. The New York Times reports:

President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions. If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week. The goal of both measures would be to open a window of time after an arrest in which interrogators could question a terrorism suspect without an interruption that might cause the prisoner to stop talking. It is not clear how long of a delay the administration is considering seeking.

According to Politico:

White House Counsel Greg Craig said such a proposal would be difficult to pass if the permitted delay went beyond 15 to 30 days. "I don’t know what the administration is planning to do. If the administration is planning to say we want 15 to 30 days without any kind of due process, then I think that’s going to be a hard sell," Craig said on "This Week." Today just happens to be 15 days, the lower end of the range Craig proposed.

Shahzad was not immediately read his Miranda rights upon arrest and it appears the Obama has instituted a practice, in lieu of an official policy, of delaying Miranda reading in terrorism cases. Now, it appears that Shahzad’s lengthy pre-hearing detention may also be an unofficial practice, also instituted without a clear rule change. Anthony Romero, the executive director of the American Civil Liberties Union, told the New York Times:

“It’s highly troubling that the Obama administration might propose to lengthen the time in which a potential defendant would come before a judge,” Mr. Romero said. “Both proposals would severely undercut the Obama administration’s assertion that they believe in the rule of law.”