By John S. Wilson

Faisal Shahzad, the alleged “Times Square bomber,” recently received a preliminary court hearing. It is about time. He has been held in federal custody for two weeks. Shahzad has not been convicted yet and, thanks to our justice system, is therefore innocent until proven guilty. Of course some assert ‘how could he not be guilty, hasn’t he confessed?’ Yes, indeed he has confessed and has waived his right to a speedy trial.

But neither of those facts explain why it took two weeks for Shahzad to have a preliminary court hearing. Attorney General Eric Holder has not stated why it has taken such an extraordinary amount of time. Traditionally, suspects tried in criminal court are arraigned (brought on formal charges) within 48 hours of arrest unless there are extraordinary circumstances.

Shazad was interrogated before he was read his Miranda rights — which include the right to remain silent and the right to an attorney. Using the “public safety exception” to Miranda established by the U.S. Supreme Court in New York v. Quarles , 467 U.S. 649 (1984), authorities were able to interrogate Shazad, asking questions pertinent to an imminent threat to public safety or themselves; and any admission by Shazad, providing it was not coerced, would be admissible in court.

Holder does not say why Shahzad was held in custody without access to a preliminary hearing. The “public safety exception” does not grant authorities unlimited or, for that matter, an explicit amount of time that a suspect can be held without access to counsel or a preliminary hearing to be formally charged. Constitutional law professor Michael Dorf, in looking at the Quarles Court, explains its view of the “public safety exception” as such:

“So the Quarles Court was worried that the warnings [Miranda] might dissuade a suspect from talking. However, it’s not clear that the Quarles Court thought that even this concern would justify any form of prolonged interrogation. The very next paragraph talks about the decisions police must make “in a matter of seconds.” It’s hard to see how that becomes hours.”

Furthermore, if Holder had presented Shazad to a preliminary hearing before a judge within 48 hours, what would he have had to lose? Admittedly, this is hard to assess because the government has not (understandably) publicly released all the information they have. Nor am I asking them to. After all, the government may be in possession of sensitive information. Or they may not have evidence aside from what appears in the criminal complaint against Shahzad, and could be bluffing. (However, I am inclined to believe they do have other information because they have secured warrants to arrest others accused of funding Shahzad or other likeminded groups.) Nevertheless, within 48 hours the government should have presented their evidence before an impartial judge, and he could have decided.

By violating a suspect’s due process right to a preliminary hearing in a timely manner, the government is asking the public and, more importantly, every suspect to take them at their word. And while there are only a guilty few, anyone can become a suspect. All it takes is an allegation.

ABOUT THE AUTHOR: John is a regular contributor to Hip Hop Republican and has written over 20+ editorials that have appeared in fora such as the Orlando Sentinel, the Daily Voice, Wiretap magazine,  the Commonwealth Times, and Policy Net. He blogs at policydiary.com and you can follow him on Twitter: @policydiary.