Atomic Device Set to Explode in Manhattan: Do You Read the Suspects Their Miranda Rights?

I recall some 30 years ago being presented in law school with the following hypothetical:

An atomic device, planted in Manhattan, is timed to explode in one hour. You catch a suspect who has called for the violent overthrow of the government and whose clothes are emitting traces of radioactive material. Do you read him his Miranda Rights? And when he asks for coffee, donuts and a court-appointed defense lawyer, how do you respond? Think fast: we're already down to fifty-eight minutes before all goes up in a mushroom cloud.

Thirty years ago we could afford to shrug off this constitutional rights question as beyond the realm of possibility. Today this is no longer the case. International terror is forcing us to contend with issues for which their are no readily available answers, tools, formulas or experience.

Or am I mistaken? In a November 14 editorial entitled "A Return to American Justice" (http://www.nytimes.com/2009/11/14/opinion/14sat1.html), the editorial board of The New York Times seems to know just how to handle mass murderers. Their editorial with my commentary in italics:

Attorney General Eric Holder Jr. took a bold and principled step on Friday toward repairing the damage wrought by former President George W. Bush with his decision to discard the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations. [A "well established system" for dealing with mass murderers? Excuse me, but apart from Pearl Harbor, I don't recall anything resembling 9/11, and given the many different nationalities of the 9/11 victims, perhaps a Nuremberg-type trial would indeed be in order.]

From that entirely unnecessary policy (the United States had the tools to detain, charge and bring terrorists to justice) flowed a terrible legacy of torture and open-ended incarceration. It left President Obama with yet another mess to clean up on an urgent basis. [Fortunately Obama also didn't have to clean up another 9/11.]

On Friday, Attorney General Holder announced that Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four others accused in the plot will be tried in a fashion that will not further erode American justice or shame Americans. It promises to finally provide justice for the victims of 9/11. [Ask the families of the victims how they feel about this upcoming show trial.]

Mr. Holder said those prisoners would be prosecuted in federal court in Manhattan. It was an enormous victory for the rule of law, a major milestone in Mr. Obama’s efforts to close the detention camp at Guantánamo Bay, Cuba, and an important departure from Mr. Bush’s disregard for American courts and their proven ability to competently handle high-profile terror cases. If he and Vice President Dick Cheney had shown more faith in the laws and the Constitution, the alleged mass murderers would have faced justice much earlier. ["High profile" justice or a media circus leading to retribution against U.S. civilians and army personnel overseas?]

Republican lawmakers and the self-promoting independent senator from Connecticut, Joseph Lieberman [argumentum ad personam], pounced on the chance to appear on television. Despite all evidence to the contrary, they said military tribunals are a more secure and appropriate venue for trying terrorism suspects. Senator John Cornyn of Texas, a former judge who should have more regard for the law, offered the absurd claim that Mr. Obama was treating the 9/11 conspirators as “common criminals.” [Senator Cornyn "should have more regard for the law"? Maybe The New York Times editorial staff should begin by stating which law applies. If you ask the defendants, they'll tell you that they abide by Sharia law and are immune to prosecution.]

There is nothing common about them — or Mr. Holder’s decision. Putting the five defendants on public trial a few blocks from the site of the former World Trade Center is entirely fitting. Experience shows that federal courts are capable of handling high-profile terrorism trials without comprising legitimate secrets, national security or the rule of law. Mr. Bush’s tribunals failed to hold a single trial. [Examples, please, of federal courts trying cases involving something on the order of 9/11.]

The fact that defense lawyers are likely to press to have evidence of abuse aired in court — Khalid Shaikh Mohammed was tortured by waterboarding 183 times — is unlikely to derail the prosecutions, especially given Mr. Holder’s claim to have evidence that has not been released yet. [Evidence that has not been released yet? Forgive my cynicism, but if we want to be "fair" and abide by the rules of "due process", mustn't the defendants be informed of the evidence?]

Regrettably, the decision fell short of a clean break. Five other Guantánamo detainees are to be tried before a military commission for the 2000 bombing of the Navy destroyer Cole, including Abd al-Rahim al-Nashiri, who is accused of planning the attack. [By all means: Let's give them a "high-profile" trial, too, and see what that costs taxpayers.]

The rules for the commissions were recently revised to bring them closer to military standards. And Mr. Holder cites the fact that the Cole bombing was an attack on a military target to justify a military trial. But that does not cure the problem of relying on a new system outside the regular military justice system. Nor does it erase the appearance that the government is forum-shopping to win convictions. Most broadly, it fails to establish a clear framework for assigning cases to regular courts or military commissions going forward. [The government is forum-shopping to win convictions against "alleged" mass murderers? How dare the nasty government seek convictions against these "alleged" mass murderers!]

Still, this much is clear: the Obama administration has yet to completely figure out how to rectify the disgraceful Bush detention policies, but it is getting there. [Disgraceful detention policies? We've already seen where some of these "detainees" have reappeared following their release.]

I don't pretend to have the answers. But how many members of the NYT's editorial board have ever held an M-16, gone out on patrol in the cold of night, confronted an armed terrorist, or witnessed the aftermath of a Daniel Pearl style execution? Something horrible is brewing out there that mere words, from The New York Times or from any other news organization, cannot begin to describe.