Faisal Shahzad’s “Waiver” of His Rights

Faisal Shahzad was arrested just before midnight on May 3.

On May 5, the Pakistani newspaper Dawn reported that one of Shahzad’s friends and his father-in-law, Iftikhar Mian (elsewhere named as Mohammad Asif Mian), had been detained by Pakistani intelligence. The same report describes a meeting that took place on May 4, at which Pakistani authorities promised US Ambassador Anne Patterson full cooperation with the investigation. Also on May 5, the AP took a photograph (published in a May 6 Time article) showing a policeman apparently standing guard in front of Shahzad’s father’s house. Later the same day, less than 48 hours after Shahzad’s arrest CBS reported (apparently for a second time, given the title and the picture referring to an arraignment expected but postponed the day before) that Shahzad’s arraignment had been delayed. On May 6, a blog reported that Faisal’s father, retired air force officer Baharul Haq, was taken into “protective custody” by Pakistani officials.

On May 9, Dawn reported that the FBI was seeking access to Shahzad’s father.

On May 11, Dianne Feinstein confirmed that Shahzad had waived his right to speedy arraignment.

On May 14, Pakistan’s Interior Minister stated that there had been no formal arrests in Pakistan related to the Shahzad case.

In all of this reporting, there has been no solid reporting as to the status or location of Shahzad’s wife, American citizen Huma Mian, or his kids, at least one of whom is also US-born (though some reports had her staying at Shahzad’s father’s house).

I raise all this to point out that at a time when it still wasn’t clear whether or not Shahzad would “waive” his rights to appear in court and–apparently–have a lawyer, Pakistani authorities had already detained at least Shahzad’s friend and father-in-law, potentially his father, and might well have police guard on the house at which his wife remained (though, as I pointed out, we have no real clarity as to Huma Mian’s location). All of this presumably occurred in response to the US request for help on May 4, just hours after Shahzad was arrested. And, in that same period of time, Shahzad rather curiously waived not just his right to an arraignment, but possibly also his right to an attorney.

Now consider what happened in two other big counterterrorism cases this year. To get Umar Farouk Abdulmutallab to cooperate, the FBI flew to Nigeria and persuaded his family to get him to cooperate (note, given Abdulmutallab’s father’s role in banking, the US would have a way of pressuring the father). And once the government indicted Najibullah Zazi’s father (followed by a few of his friends) it took just weeks to get him to plead guilty and start cooperating with investigators.

And all that, of course, happens against the background of incidences where the families of other detainees, notably Pakistanis Khalid Sheikh Mohammed and Aafia Siddiqui, were taken into custody and (at least in the case of KSM) used as threats against the parent.

Our government has been very successful at coercing terrorist suspects by using the suspects’ family.

Did the government use the detention of Shahzad’s and Mian’s fathers as a way to convince Shahzad to “waive” his rights to an arraignment and–more importantly–potentially a lawyer?

31 replies
  1. earlofhuntingdon says:

    I wonder which testicle survived the longest before its owner decided he ought to waive his right to a speedy arraignment. Or which relative was too important to risk the possibility they might be tortured. How strenuously did Ms. Feinstein inquire, I wonder, before she blithely fronted for that remark.

  2. BoxTurtle says:

    Insufficient data to be sure…but once he does get a lawyer, that lawyer will likely explore that area.

    Still, the fellow began cooperating so quickly, you almost have to assume the first thing they tried worked. Would they have gone after the family first or would they have done the standard cooperate for reduced sentance and better prison conditions?

    It sure would be nice to be able to dismiss your worry with a superior sounding “Our Government simply would not do anything like that”. But we know better.

    Boxturtle (Our government DOES do things like that…and seems to enjoy it)

    • emptywheel says:

      He began cooperating immediately. But his story at first was that he had acted alone. Since then, presumably, his story has changed because they’ve now arrested people who helped him get funding.

      • BoxTurtle says:

        For some reason, I don’t trust the government’s story about his story. I think the government released the working alone story to improve their chances to pick up his accomplices.

        They’ll have to tell the truth in their court filings. We’ll know then.

        Boxturtle (Did I just type that last line? Great Goddess, my brain must have turned to Scotch!)

  3. freeman says:

    Could it be perhaps that Faisal never knew what he was doing while waving his rights because he never had an attorney present when he did so ?

  4. freeman says:

    Will our rights as American disappear even faster with Stevens replacement on the court having to likely recuse herself from terrorism cases and those concerning presidential powers as a result of her work for the Obama administration as Solicitor General ?

    • harpie says:

      That’s an interesting case, as is this paragraph:

      The Pentagon claimed that Mingazov was captured in a March 2002 security forces raid on a suspected terrorist safehouse belonging to an al Qaeda rival named Zayn Abdeen al Hussein, known as Abu Zubaydah.

      And (thanks for the laugh), BoxTurtle @9!

  5. boltbrain says:

    I’m not trying to challenge Godwin’s law here, really: reportedly Erwin Rommel chose suicide by poison pill over public trial that would have given him a platform to defend his reputation and maybe save Germany from Stalin getting to it before the Allies, because he knew his wife and his son might be tortured and slaughtered if he chose the second path.


    If you preserve a level of secrecy over what you’ve done in the past and what you’re doing in the present, you get the benefit of a level of uncertainty over what you’re capable of. Deep-think public liberals wrote stuff buying into this as policy, even before Abu Ghraib came out.

    “I am not opposed to all wars. I’m opposed to unpopular dumb wars.”
    -B.H. Obama, Illinois state politician

    • earlofhuntingdon says:

      Rommel would never have lived to see that public trial or to voice his criticisms of Hitler and his Reich. He would have disappeared, had a stroke or heart attack, or been killed by the “Allies”. He went out by his own hand in hopes that his son and wife would survive him. They did.

        • earlofhuntingdon says:

          He was exceptionally fit and brave; if he thought it the best course available, he would not have hesitated.

          • boltbrain says:

            Over all, yes: but his car was blown up in a road run by a Spitfire that may or may not have been operating on directions under a Brit general name of Browning, flown by a South African name of Le Roux, and he was still recuperating from head injuries etc.

            Anyway, it’s worth remembering his objection wasn’t to Hitler; he was a huge fan. It was to the calculation that pissed off Russians would revenge themselves on Germany for what he knew Hitler had done in Operation Barbarossa. Bad as it turned out, Rommel recognized Germany was in peril of extermination on the scale of Ghenghis Khan: he was right there on German plans to do the same to Russia; he could readily project into no chance for any 4th Reich. There must be German history scholars here that can tell us all about the German version of manifest destiny; it was Hitler’s big seller, his shining city, his lamestream media hopey-changey thing.

            There I go again …

    • prostratedragon says:

      It’s not necessarily Godwin’s great stumbling block that sends minds reeling back to that era. Scott Horton is exceptionally apt today:

      The weakness of the actual legal theory [by which a government overrode the accepted understanding of the scope of its powers] could be compensated for with the manipulation of formal legal institutions, such as Justice Ministry officials who would render opinions which were perfect in form though vacuous in substance, and politically loyal judges who would pronounce these absurdities to be the law. The façade of the Constitutional regime would remain, even as the internal transformation was complete. But a keen observer, historically schooled, would see the new construction for what it truly was.

      • boltbrain says:

        Well, precisely.

        It’s not inevitable that we turn into a fascist state. In my opinion, it unfortunately is inevitable if this current brew of Republicans gain either the White House or control of Congress. Germany’s experience is no more exceptional than ours. The danger has been beaten back, or avoided by events, in the past, more than once; but it’s been close, and it’s a zombie. Maybe this oil spill disaster will prove to be such an event this time.

  6. Sara says:

    I think the genius of Rommel is way way over rated.

    He was whipped two and a half times in less than two years by forces which had decided weaknesses and disadvantages. El Alamein, had Rommel succeeded, would have opened the whole middle east with its oil to Hitler, and cut the critical Suez link between Anglo-American forces and Asia. Instead, Rommel could not supply the Africa Korps properly, and lost much of his Italian force, opening the German Infantry and Tank Korps to direct attack as well as flanking attacks on overextended supply lines. El Alamein was a strictly British-Montgomery operation, only slightly reinforced with some defective first generation Sherman Tanks Roosevelt sent to Red Sea ports instead of their intended Australian destination.

    Rommel’s second great loss was Tunisia, partially at Montgomery’s hands, but also against the Anglo-American and Free French Forces under Eisenhower. Again, Rommel’s great weakness was logistics, but his opponents were also weak and at least the Americans were inexperienced, and very new to joint operations and command…with supply lines that ran back to East Coast US ports. His final half outing was the defense command in Northern France, and he died just prior to the break-out from Normandy.

    Rommel may have been a good tactician, but he didn’t have the necessary ability to lay before his own command the requirements for success… which in his case nearly always involved logistics. His brush with the coup plotters, discovered, and his consequent choice of suicide over trial for treason may be more a reflection of his recognition of this key inadequacy than anything else.

    I doubt if there is much of a useful analogy between Rommel’s fate and that of Faisal Shahzad, or any of his family or confederates in Pakistan, or contacts in the US. Shahzad is caught in the approach to security that has been at the heart of the US approach since just after 9/11, namely construct a sociogram around anyone who comes under suspicion, and thoroughly investigate every contact, no matter how seemingly minor, connected to a confirmed suspect. And for good measure, do another sociogram around every contact uncovered, and investigate these second degree contacts. Doing it in both Pakistan and the US, produces quite long lists — but then they are looking for needles in haystacks.

    • emptywheel says:

      I think you miss my point.

      Can a “waiver” of your rights, even to a lawyer, be considered non-coercive if your families members are being held in custody by the ISI?

      • ondelette says:

        The competency hearing of Aafia Siddiqui, and the subsequent ban on statements and evidence that she and her children had been incarcerated and tortured, hinged on reports from FBI interrogators. Those interrogators began questioning her within hours of her regaining consciousness following surgery and blood transfusion, while on morphine, under 24 hour/day lights with her in 4 point restraints, with three cameras in the room, and her needing to be ‘accompanied’ to even the toilet by an FBI agent, sometimes male, for the entire two weeks. During that time, she believed that they held two of her children and that their safety hinged on her words.

        Apparently, such things are admissible in court, at least in SDNY.

        But I think that the Lindsey Graham ‘solution’, of lowering the requirements by treating the prisoner as a military prisoner under the laws of war, should be out at this point. I don’t know about Constitutional rights, but it is explicitly forbidden for a prisoner (combatant or civilian) to relinquish their rights under Geneva. Precisely because of what you’re asking.

      • Mary says:

        Your point is one that isn’t getting the attention that it should.

        In the *GWOT* I think it got framed very quickly in the Higazy case. There, the “confession” of Higazy to his role in the 911 hijackings, etc. were tied to allegations that the FBI told him they were going to have the Egyptians take his sister. With all that attended that. Then, voila, he confesses to ownership of a device that was not his and it’s but for the grace of god and a diligent pilot returning to try to find his equipment and the fact that Higazy WAS initially handled through the judicial system and DID have a lawyer, that we know anything about any of this.

        If Comey had handed Higazy off in the same manner as Padilla, or if the Judge has been more of a Mukasey, Higazy could well have been a suicide at GITMO and his sister could have been a suicide or disappearance as well. IIRC, it was references in the appellate opinion in the Higazy case to the FBI’s use of the threat of having the Egyptians take Higazy’s sister that caused the uproar over the opinion being posted without a required redaction (to that info).

        This has been some of my question as well with regard to KSM. It’s one thing for the court to try to separate “clean” evidence obtained without torture from torture evidence, but how do you ever have a non-coerced defended, one who can competently assist in their defense, when their family has been disappeared by the US government – a government which has affirmatively threatened a prisoner’s wife and children without consequence and has never, after years and supposed investigations, produced that family or any accounting for them?

        All of which also takes you to a larger, overweaning question – especially while Obama is pursuing military commissions. How can any detainee charged with any kind of terrorism activity be acting other than under coercion, when the government is holding over their head the ability, at any time, to take them out of the judicial system and put them into a military situation of “forever” detention (even without conviction of any crime) under “interrogation” procedures including the kinds of things that have been, and are continuing to be, done at GITMO and elsewhere? How are they other than coerced when they know that if they don’t say what is wanted, they can be shipped to a place where they have no right to complain of any kind of torture being done to them and where the US government not only provided amnesty at intervals for torture, but also provides encouragement, ranging from tacit to explicit, for torture and a cover of secrecy to torturers?

        How does a detainee participate in any way that isn’t coerced when they are aware that they can always be disappeared into a forever military detention of unending abuse?

        • knowbuddhau says:

          I often wonder the same thing, Mary, about trying to be free under the extortion of self-appointed authorities of a god whom, they say, will send you to hell if you don’t do exactly as they tell you to.

          The age-old fear of god is being replaced by the fear of DoD. We’re free, all right: free to do exactly as we’re told, or nobody, you know, gets hurt, in a hellish “forever” detention. Comply, or get sent to hell (or GTMO, Camp No, Bagram, the JSOC jail within Bagram, a super-max prison made just for you, whatever).

          Never mind that compliance also leads to hell: getting tortured means never being eligible for release.

          Let’s look at how beliefs and worldviews influence actions. As Carter told Albright, what people believe as religion, they’ll do as public policy. Waging an eternal holy war, capturing and holding “evil-doers” forever and ever–isn’t that what Obama’s god would do? But isn’t that an oddly Old Testament attitude for a guy who supposedly worships the Prince of Peace?

          As Obama proved in Stockholm, myth-making sure makes nice cover for bogus holy war-making in the name of full-spectrum dominance. Just conflate the Mandate of Heaven with the political leader and SHAZAM! A skinny guy from Illinois becomes Leader of The Free World, presiding over the most imprisoned population in the world, occupying countries (that includes you, Europe), waging bogus holy wars, extending state secrets. etc.

          Is that how the Bully Pulpit got its name? Because presidents use it to preach people to a bloody pulp with myths of American exceptionalism? /s

      • Sara says:

        “Can a “waiver” of your rights, even to a lawyer, be considered non-coercive if your families members are being held in custody by the ISI?”

        Given that Shahzad’s access to any information regarding what was moving in Pakistan, or at the hand of ISI, pretty much would have been closed off when he was taken off the Emerati Flight, I doubt if he has any idea what his family has experienced since his arrest. If he has no information, then his treatment might not be at all coercive.

        What we simply don’t know at this point is what kind of offer FBI has given Shahzad. What we do know with limited certainity is that within a day of so of the attempt in Times Square, they amassed a pile of evidence that linked him to building and attempting to set off the bomb. They had at the criminal level, an open/shut case worth perhaps 40 years or more. They got their man, and they presented the court with preliminary charges. They were in a position to make an offer — my guess is that they did just that. They are far more interested in his contacts, in the US as well as in Pakistan relevant to transfer of money, communications, training, training sites, identity of trainers in the FATA and all than they are in plus of minus five or ten years on a criminal sentence. So if someone authoritative from DoJ or FBI says we’ll prevail on the judge to knock ten years off the sentence if you answer all our questions truthfully, I think it a possibility Shahzad might make that choice. I rather think the FBI is having lots of fun with the Hawala records they probably found with the arrests last week — not so much the records of Shahzad’s transactions, but all the others the Hawala operators in Boston and New Jersey may have had — and may be now discussing with FBI investigators. Hawala records probably are minimally involved in the Shahzad case itself, rather they might suggest others Taliban has trained and set up for US actions. I notice nothing recent has been in the news about indictments of the Hawala operators — they were arrested and nothing further. I suspect they are being pumped for intelligence in the same way as Shahzad was. The Hawala guys were not citizens, and on expired visas, so they probably are looking at a choice between being expelled on visa charges if they cooperate, and looking at material support of terrorism charges if they don’t. And if they executed a transaction for 10,000 or more, and didn’t report it, they would be looking at banking and currency transaction charges. If the Hawala guys or their records reveal others either in Pakistan or the US suspected of moving funds for Taliban backed operations, I suspect you will see the cycle repeated. It is as much about intelligence gathering and disruption of plots as it is about trials and convictions.

        Did you notice in the Pakistani Press about a week ago that the Pak Army is pulling about a hundred thousand troops off the south-central Indian Border, and moving them up into the FATA? I don’t think this would have happened if some sort of back channel negotiation between India and Pakistan had not transpired, with a fairly strong Indian Guarentee to stand down troops on the border so Pakistan could use their troops this summer in the FATA and Northwest. Perhaps it is a sign Pakistan is moving toward being very serious about Taliban, and leaving behind some of the rationals and excuses. We’ll see.

        As to the taking into custody of Shahzad’s family — I am not at all surprised. It is probably as much protective custody as ahything, given the frequency of Taliban kidnappings either for ransom or vengence. Without knowing more about the specifics, I don’t see why the US would want these family members arrested and imprisoned. The usual pattern is for members of wealthy Pakistani families who might be subject to ransom or vengence attacks by Taliban, to eventually end up in the Gulf or Saudi Arabia for some years — and I saw a reference to the Father-in-Law already being in Saudi Arabia. One thing that doesn’t add up — Faisal Shahzad’s wife was reported by the CT neighbors as not being able to speak any English — but according to other articles, she was born in Denver, and grew up there. Faisal did not get his US Citizenship by direct application, he got it by petition given his wife’s native born US Citizenship. So why did the neighbors believe and report she could not speak a word of English? I am curious. One piece doesn’t fit. Maybe more pieces don’t “really” fit so neatly.

        In recent weeks, I’ve gotten very tired of the niggling on the margins criticism of Obama and his administration. I suppose it is because of spending years in DFL Electorial Politics, but I really am much more concerned with what gets Obama supporters elected next fall, and contributes to his re-election in 2012 — and it is hardly going to be decided on how many Miranda warnings his folk deliver and how fast after arrests. If we end up with a profoundly “hung” Congress (love that term) and a Presidency that is frayed, the T-Party types will win enough victories to be Mystically empowered, and I think that would be a Disaster — total Disaster. Getting a decent outcome next November is about keeping a smidgen of power to do larger things, and exceptions to the Miranda warning process is hardly one of the larger things. What matters is (1) the economy, both jobs and increasing rational consumption, (2) continued removal of troops from Iraq, (3) whatever you want to call the Afghani and Pakistani strategy, I could care less, but the goal is to get the writ of Governance to run in all parts of both countries, so that neither country has independent tribes with their own international policies, including war policies. Obama has to be understood as using American Resources to that end. I am delighted to see that both Obama and the Democrats are polling in such a way that people trust them on Terrorism, in fact the trend line just crossed the Republican one on that variable, but another bloody attack such as Major Hussain’s could change this. Voters will vote their sense of security, and sense Obama knows what he is doing. (4) Voters want to see some pragmatic problem solving on the issue of immigration. (5) I find it Ironic that to get an energy bill, Obama was willing to compromise on “Drill baby Drill” and a very greasy baby has been handed back to him. Apparently what was done at Minerals Management was just clean the scum (coke and sex) off the top of the rotten agency, but not to drill too deep on reform. If progressives had any tactical sense (and observing the last year, I think they are culturally deprived in this area), they would be in high regulatory reform fighting mode at this point. Seizing opportunity when it washes up on your beach is fundamental to successful power politics. I think there are lots of votes in stringing up a rotten regulatory agency for cause. (Have you noticed the Cheney Family has been unusually quiet since the oil gusher at 5000 feet down started spewing?)

        Anyhow, without Power (meaning senators and rep’s who do something other than say no), Obama can do nothing. Nothing progressive can happen without a progressive power center. That’s why paying attention to electorial politics is necessary.

        • bmaz says:

          Your “niggling around the margins” are other people’s core beliefs in Constitutional principles and civil liberties. I am frankly stunned you feel the fifth and sixth amendments to be “little things” and inconsequential when compared with rote partisan politics. Not to mention the political and moral sellout that is his precious healthcare plan. While I may vote for him if there is another horrid choice like McCain as the alternative, I am not in the least interested in working to elect his “supporters”. I am very much interested in electing those who are not like Obama and would perhaps see fit to move the disappointment in a better direction.

          • bobschacht says:

            You may find that you’ll have to vote for some Republicans to achieve that end, although I can’t imagine who that might be here in AZ.

            Bob in AZ

          • Sara says:

            “Your “niggling around the margins” are other people’s core beliefs in Constitutional principles and civil liberties. I am frankly stunned you feel the fifth and sixth amendments to be “little things” and inconsequential when compared with rote partisan politics. Not to mention the political and moral sellout that is his precious healthcare plan. While I may vote for him if there is another horrid choice like McCain as the alternative, I am not in the least interested in working to elect his “supporters”. I am very much interested in electing those who are not like Obama and would perhaps see fit to move the disappointment in a better direction.”

            Not at all unconcerned with constitutional principles — but not my only or most immediate concern. If people were razzed up about constitutional principles they would be out in the street here, where the Republicans just nominated Emmer for Governor, running on the ticket that no Federal Law would be legal in Minnesota unless it was passed by a confirming vote of 2/3rds of the Minnesota Legislature. (New way to run for Succession, I guess.)

            I am more concerned with getting a full eight years of pragmatism on the books, and in my mind Obama is moving into the realm of getting there. I realize the Health Bill was not everyone’s cup of tea, but I expect improvements over the years, and it is going to be quite a gulp to get what was done passed. But now that Congress knows it can pass big bills, it will be up to voters to elect more problem solvers. I think they will get Financial Reform done by the end of the month, and then perhaps we move on to Energy and Climate Change. None will be perfect, but they will be big bills that walk in the opposite direction from the tendency of the last 30 years — and that’s what is necessary now.

            Obama could get nothing done if he doesn’t have the congressional votes sufficent to control the agenda in congress. You may not like all the parts of the agenda or precisely how things turn out as it is pushed through the congressional process, but the other choice is gridlock. Right now I don’t think Gridlock is healthy — so I will opt for those who generally will support the Obama Agenda.

    • earlofhuntingdon says:

      I think that overestimates the talent of Hitler’s high command, not Rommel.

      As for haystacks, I don’t think they’re looking for needles in them. I think the system enjoys the inquiry and finds it highly profitable.

      There are some in it who put their job ahead of making a profit, of looking good to lobbyists and occasionally the electorate, but they are overshadowed and trying to overcome considerable momentum opposing more rational or focused efforts.

  7. earlofhuntingdon says:

    This op-ed from a Scott Turown, reprinted by the Times today, responded to a 2000 Supreme Court case that upheld Miranda. Nothing about 9/11 changed his observations; it reinforced them (emphasis added):

    [C]ops should recognize that no matter how noisy their protests, or how much they chafe, they are always going to be subject to civilian authority. Catching bad guys is important, but it is not the only thing this society values; we also care about certain minimal standards of decency in the government’s treatment of citizens and limits on the authority of the state.

    The requirement to recite Miranda is an important reminder to the police that the war on lawlessness is always subject to the guidance of the law. This week’s decision, by a court that is not perceived as particularly hostile to law enforcement, is a needed reaffirmation of that message.

    • bmaz says:

      I have been practicing criminal law for nearly 22 years now, eight years as a federal prosecutor and 14 years in private practice. In that time, I have been involved in exactly one case where the result was changed after a confession was declared inadmissible under Miranda, and that matter involved a juvenile who, in addition to not being told his rights, did not enjoy the benefit of a number of other safeguards applied in Illinois to the questioning of minors.

      You gotta wonder what the hell Turow has been doing. I had boatloads of Miranda issues and numerous items and statements suppressed.

      • earlofhuntingdon says:

        Turow described his USA and private practice, as opposed to his novel writing, as consisting largely of white collar criminal cases. If he’s prosecuting accountants, lawyers, bankers, corporate executives, and leaders of organized criminal activity whose crimes were big enough to attract the US Attorney, I suspect many of the defendants did not need to be reminded of their constitutional rights and that FBI and other federal law enforcers were trained enough to remind them anyway, even after 9/11.

        I suspect the same cannot be said of all federal law enforcers, nor could it be said about many of the staff in large and small police forces, which is where Miranda would have been most needed (as it was in the actual case).

        The need for Miranda and other protections would seem to be increasing in a country that normalizes terror as state policy, whose legislatures and former de facto presidents proudly shout about their approval and authorization of it.

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