Charles Krauthammer

Even posing this choice demonstrates why the very use of the civilian judicial system to interrogate terrorists is misconceived, even if they are, like Shahzad, (naturalized) American citizens. America is the target of an ongoing jihadist campaign. The logical and serious way to defend ourselves is to place captured terrorists in military custody as unlawful enemy combatants. As former anti-terror prosecutor Andrew McCarthy notes in National Review, one of the six World War II German saboteurs captured in the U.S., tried by military commission and executed was a U.S. citizen. It made no difference.

But let's assume you're wedded to the civilian law-enforcement model, as is the Obama administration. At least make an attempt to expand the public safety exception to Miranda in a way that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case.

The public safety exception should be enlarged to allow law enforcement to interrogate, without Mirandizing, those arrested in the commission of terrorist crimes (and make the answers admissible) -- until law enforcement is satisfied that vital intelligence related to other possible plots and threats to public safety has been sufficiently acquired.

This could be done by congressional statute. Or the administration could, in an actual case, refrain from Mirandizing until it had explored the outer limits of any plot -- and then defend its actions before the courts, resting its argument on the Supreme Court's own logic in the Quarles case: "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the (Miranda) rule."

Otherwise, we will be left -- when a terrorist shuts up as did the underwear bomber for five weeks -- in the absurd position of capturing enemy combatants and then prohibiting ourselves from obtaining the information they have, and we need, to protect innocent lives.

My view is that we should treat enemy combatants as enemy combatants, whether they are U.S. citizens (Shahzad) or not (the underwear bomber). If, however, they are to be treated as ordinary criminals, then at least agree on this: no Miranda rights until we know everything that public safety demands we need to know.


Charles Krauthammer

Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.

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