Times Square Bomber and the Constitution

I have seen some commentary on the right stating that the Times Square Bomber should be handed over to a military tribunal. John McCain, most prominently, seemed to be saying that the suspect, Faisal Shahzad, shouldn't have been given his Miranda rights. The linked article suggests a similarity with the Christmas day bomber, Umar Farouk Abdulmutallab. This is a dangerous road for conservatives to take. Through incompetence or not, Shahzad was a U.S. citizen, who committed his crime on U.S. soil. In my view, this makes the issue a police matter, even if there are international connections. A treason charge wouldn't change his legal status and might be appropriate, but the constitution is clear that until convicted of treason, the suspect loses no rights.

The first danger from this approach is that it undermines pretty decent arguments for military tribunals for foreigners we capture as part of the war on terror, or whatever we are calling it. Conservatives will be seen as willing to suspend the rights of anyone and feed the suspicion of the some that we are closet fascists. We need to clearly make the case that foreigners lack the rights that U.S. citizens retain, in order to maintain public support for a realistic approach against foreign fighters. By lumping all categories of terrorists together, we actually tie the hands of our military overseas, because legal issues become overwhelmingly intrusive on the battlefield.

Even more importantly, we must respect constitutional safeguards if we are to remain a free people. As Glen Beck pointed out last night, the Constitution matters most when it is most inconvenient. Imagine for a moment that you attended a rally that called for the repeal of Obamacare and generally lambasted government excess in general. Of course, a couple of kooks might show up, LaRouche followers perhaps; who start advocating the violent overthrow of the government, in some sort of black hat op. If you were rounded up by the police and charged with terrorism, just because you were there, wouldn't want your rights of habeas corpus, Miranda, and to an attorney to be respected? Our constitutionals rights form a bulwark against tyranny that is perhaps more fragile than we believe.

Conservatives have been sloppy over the last decade on this issue. Even though I supported the military tribunal process while Bush was President, I did not support his extra-legal approach, abrogating powers not granted to him by law or the constitution. Same for foreign wire tapping; I support the effort, if codified into law and given judicial oversight. Our case for our methods are undermined if we fail to support the rule of law and conformance to the constitution. One of the strengths of argument we have against the over reach of the current administration is our adherence to constitutional principles. Let's not fritter away that strength. Go ahead and Mirandize Shahzad.

Addition to post: Volokh Conspiracy, as usual, has a decent legal analysis of the issue. I am kicking myself for not reading it first. They make the great point that the FBI did not need to Mirandize the suspect under the public safety exception if they needed to get further information about other plots.