The Justice Department is taking political flak again for its handling of terrorism suspects, despite efforts to emphasize that agents used a legal exception to interrogate alleged Times Square bomber Faisal Shahzad extensively this week before giving him Miranda warnings.
"Joint terrorism task force agents and officers from NYPD interviewed Mr. Shahzad last night and early this morning under the public safety exception to the Miranda rule," FBI deputy director John Pistole said Tuesday at a joint news conference with Attorney General Eric Holder. "He was cooperative and provided valuable intelligence and evidence."
The comments invoking a "public safety" exception - a source said questioning went on for nine hours before Shahzad got Miranda warnings - seemed designed to blunt the political firestorm that erupted last winter over claims that Miranda warnings given to the Christmas Day bomber might have gotten in the way of discovering an imminent threat.
But the criticisms re-emerged in force Wednesday on Capitol Hill, as Sen. Lindsey Graham (R-S.C.) used an appearance by Mayor Michael Bloomberg and Police Commissioner Ray Kelly to push for treatment of terror suspects - even U.S. citizens - as military prisoners.
"If you can be caught in Pakistan, intelligence-gathering can happen with the intelligence agency without your Miranda warnings being given," Graham said at the Senate homeland security hearing. "Why should you get a better deal when you get here? Even if you're an American citizen helping the enemy, you should be viewed as a potential military threat, not some guy who tried to commit a crime in Times Square."
The "public safety" exception cited by Pistole refers to a 1984 Supreme Court case, New York v. Quarles, which approved police questioning a rape suspect about a hidden gun without warning him of his right to remain silent and to have a lawyer because of an imminent threat to public safety.
Its use in the terrorism realm is not unprecedented, legal experts say. As long as there is a "ticking time bomb" threat - a risk of unknown co-conspirators or plots under way - agents have a window to question a suspect without Miranda warnings, and obtain information that could still be used in court. Holder has said that it also was used during some of the early questioning of Christmas bomber Umar Abdulmutallab, accused of trying to set off an explosive device in his underwear on an international flight.
"It's well-established," said James Cohen, a professor at Fordham University Law School.
"There is a tension," said Carl Tobias, a criminal-law expert at the University of Richmond. "This allows the government to be responsive to the criticism and protect national security, but still be able to prosecute."