After all the talk about whether terrorists get to enjoy our nation’s ”legal niceties” like Miranda, the hard story is that Faisal Shahzad, the so-called Times Square Bomber (but more appropriately called the Fizzler) wouldn’t stop talking. They could have warned him once an hour, and still the guy would talk. Miranda, shmiranda.
When he was finally brought in for arraignment before Magistrate Judge George Yanthis, the government disclosed that this guy was a national treasure, giving up all kinds of great information. He’s the mouth that launched “hundreds of agents in different cities working around the clock” to do critical national security stuff. Big stuff.
Now what are they going to do about him?
Shahzad may be brilliant, or just another guy who can’t shut his mouth, but either way, he’s managed to put the government in a jam. From the New York Times :
It is possible he will continue to cooperate, and ultimately his fate may rest on how his cooperation is viewed. While there is little doubt that the information he provided has helped in the investigation of the attempted bombing, whether his assistance will help him is a different matter, one that has stirred discussion in the legal community.
Ah, cooperation. The “saving grace” from a grateful government, the answer to every miscreant’s prayers. No matter how bad your wrong, show the government some serious love and maybe all is forgiven. Or maybe not.
By waiving his right to a speedy court appearance and, most likely, lacking a formal agreement that a lawyer might have negotiated, he may have undermined any leverage he had, said Anthony S. Barkow, a former federal terrorism prosecutor in Manhattan who now runs a center on criminal law at New York University.
“I think he is doomed,” Mr. Barkow said. “He has confessed to an extraordinarily serious offense that carries with it essentially life in prison.”
Doomed is bad. If he’s doomed, after showing love the likes of which hasn’t been seen since Sammy “The Bull” Gravano, why then talk to agents? The point of showing love is to obtain the hotly desired 5K1 letter from the government, the one that informs the judge at sentence that the defendant has provided “substantial assistance” to the government.
This is the letter that launched a million rats, not to mention the rat-making industry for the criminal defense bar for lawyers who cajoled their paid-up clients to spill the beans on the defendants’ mothers rather than prepared for trial. Why fight as long as there is someone left to give up to the government?
Not even the rosiest of rat-lawyers would suggest that Faisal will get a medal for the good things he’s given the government. But then, since his charges carry life in prison, there’s a broad spectrum of reduced sentences available to him. Will his cooperation serve him well? Will a sentencing judge, upon reading his good works, reduce his 198 year sentence to 188?
Of course, Faisal may not be cooperating for the sake of a benefit at sentence. It’s always possible that a guy who wanted to blow up Times Square on one day wants to fulfill his duty as concerned citizen to the American government by helping to thwart terrorism the next. People have changes of heart all the time. At least that’s what they say when they take the witness stand, after they’ve flipped.
It’s not like the government needed Shahzad’s cooperation to make their case. The evidence, according to government accounts, was overwhelming from the outset, and he was dead before he started talking.
And given the public accounts of evidence against him — including a key to his house found in the vehicle containing a crude bomb — the case against him may have been almost ironclad before he started talking. “Just the fact he was on an airplane trying to leave the country was brutal,” said Joshua L. Dratel, a lawyer who has represented many terrorism defendants.
Josh is one of the handful of lawyers who has done the heavy lifting with terrorism defendants, and he knows when the government’s got someone nailed dead to rights. The fact that the government didn’t need Shahzad’s confession to convict him, however, doesn’t preclude his providing information about others, and if Shahzad’s information is legit (and not just about a bunch of illegal Taliban immigrants avoiding Arizona), that Shahzad was personally a goner doesn’t mean that he’s not a valued friend of the government when it came to all of his buddies. And our government has to buy its valued friends.
But if Barkow is right, how does the government convince the next bomber (let’s speculate and call him the Armpit Bomber since shoe and underpants are already taken) to spill his guts?
Gerald L. Shargel, the veteran defense lawyer, said he thought prosecutors would have to offer some sort of benefit to Mr. Shahzad for his cooperation, for reasons that went beyond his case.
“What happens to cooperators is all about message,” Mr. Shargel said. If he received no consideration and was given the penalty of life without the possibility of parole, Mr. Shargel asked how that would be read by the next terrorism suspect who was apprehended. “What motive would that person have to cooperate?” he said.
So what exactly does the government do to grease the tongue of the cooperative terrorist? There’s always virgins, if you can find some in the Southern District of New York.