or “You Might Be An Enemy Combatant If . . .”

by Gene Howington, Guest Blogger

UPDATED: You might be an enemy combatant if . . . Sen. Lindsey Graham (R – S.C.) says so.

This sounds like a bad joke, but it isn’t. The potential political misuse of the arbitrary “enemy combatant” status has been discussed here on many threads albeit usually in the form of using Executive abuse to illustrate that danger while Graham’s cavalier “suggestion” is clearly from the Legislative branch. In comments made by phone to the Washington Post’s Jennifer Rubin on Friday, April 19, Senator Graham said of the Boston bombers:

‘They were radicalized somewhere, somehow.’ Regardless of whether they are international or ‘homegrown,’ he said, ‘This is Exhibit A of why the homeland is the battlefield.’ Recalling Sen. Rand Paul’s filibuster, Graham noted that he took to the Senate floor specifically to object to Rand’s notion that ‘America is not the battlefield.’ Graham said to me, ‘It’s a battlefield because the terrorists think it is.’ Referring to Boston, he observed, ‘Here is what we’re up against,’ and added, ‘It sure would be nice to have a drone up there [to track the suspect.]’ He also slammed the president’s policy of ‘leading from behind and criminalizing war.’”

That was not the end of Graham’s disturbing posturing.

Continuing his fear mongering rush to throw the Constitution under the bus, Graham took to Twitter.

If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

So he can be what, Lindsey? What’s that word . . . entrenched evasion . . . no, no . . .

If the #Boston suspect has ties to overseas terror organizations he could be treasure trove ofinformation [sic].

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Enhanced interrogation!  That’s it.  Most sane and ethical people still call that torture. Which is still against Federal law under 18 USC § 2340,  § 2340A and § 2340B, and is in direct violation of the Constitution’s 8th Amendment. Ironically enough . . .

The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’

— Lindsey Graham (@GrahamBlog) April 19, 2013“

But we’ll be coming back to this, however, this does not mitigate the enormously hilarious blather you say next, Senator.

The Obama Administration needs to be contemplating these issues and should not rush into a bad decision.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Do you mean bad decisions like ignoring and violating the Constitution and Federal law, foregoing prosecution of domestic war criminals, and aiding and abetting said war criminals escape justice after the fact, Senator? Or are you talking more “mundane” bad decisions like letting you use the phone or Twitter without a minder to keep you from putting your feet in your mouth? Bad decisions seem to be Washington’s stock and trade in the post-9/11 pre- (some might say “post-“) martial law America.

He was joined in his anti-Constitutional posturing by New York State Senator Greg Ball (R) who twitted when he tweeted on Twitter:

So, scum bag #2 in custody. Who wouldn’t use torture on this punk to save more lives?

— Greg Ball (@ball4ny) April 20, 2013“

Charming.

Senator Graham’s Constitutionally bellicose comments and State Senator Ball’s quite frankly abhorrent and inhumane comments are Exhibit A illustrating the war against your Constitutional rights going on in Washington and in other realms of American politics. This “War on Your Freedoms” (c) ™ is openly being prosecuted by the ever expanding and unitary Executive with the aid of the Legislature. Under the NDAA (the National Defense Authorization Act for Fiscal Year 2012, specifically § 1021 ), the Obama Administration has maintained the stance that the President has the power to detain and curtail the rights of anyone he decides is an “enemy combatant” – including U.S. Citizens found within the U.S. like Dzhokhar A. Tsarnaev, 19, a naturalized American citizen – as enemy combatants. This definition is important because it subjects alleged criminals to the Law of War. This mean they can face sanctions without the benefit of judicial review including indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (a.k.a. extraordinary rendition where they ship you off to a foreign jurisdiction to be tortured), and military tribunals. In essence, the NDAA seeks to designate the United States as an active war zone in regards to allegations of terrorism, or support of terrorism, wherein our most cherished all while putting your basic Constitutional Rights subject to the President’s whim. Herein we see the inherent danger of the expanding police state. Although the Obama Administration insists that it “has a firm and publicly stated policy against using military detention for domestic captures or U.S. citizens. So whatever the (National Defense Authorization Act) may theoretically authorize or tolerate, it doesn’t affect this situation,” as summarized by Benjamin Wittes, senior fellow and research director in public law at the Brookings Institution, we can clearly see that such promises of restraint in using an overreaching Executive power is dependent entirely upon the President in question. The value of political promises made to the general citizenry of the United States is a number rapidly, not just approaching zero, but zooming right on past it into the realm of negative numbers. This blurs the line between criminal law and the Law of War in a manifestly unconstitutional way.

In addition to Graham’s call for a citizen to be stripped of his rights is a concurrent action being taken by the FBI (as backed by both the DOJ and the Obama Administration). They intend to question Tsarnaev without reading him his Miranda rights under the “public safety exception”*. This is somewhat problematic although the “public safety exception” to Miranda is well recognized jurisprudence. The history of Miranda warnings is rooted in the watershed case Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court held that both inculpatory and exculpatory statements made in interrogation by a defendant in police custody are admissible at trial only if the prosecution can show that the defendant was informed of their 6th Amendment right to consult with an attorney (both before and during questioning) and of their 5th Amendment right against self-incrimination prior to questioning and that the defendant not only understood these rights, but voluntarily waived them. As often happens with case law, later cases modified Miranda and created the “public safety exception”.

In New York v. Quarles, 467 U.S. 649 (1984), the confession took place spontaneously in the course of effecting arrest. Police were apprehending an alleged rapist in a grocery store. The police asked the defendant where his gun was and – before he was Mirandized – he indicated some boxes and said “The gun is over there.” The trial court held that this was inadmissible evidence under Miranda, but the Supreme Court held that “[t]he Fifth Amendment guarantees that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ In Miranda, this Court for the first time extended the Fifth Amendment privilege against compulsory self-incrimination to individuals subjected to custodial interrogation by the police. The Fifth Amendment itself does not prohibit all incriminating admissions; ‘[a]bsent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.’

The Miranda Court, however, presumed that interrogation in certain custodial circumstances is inherently coercive, and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are ‘not themselves rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'” Id. at 655, cites omitted, emphasis original.

In other words, the Court focused on voluntariness as the lynchpin of determining if a statement is protected under Miranda. They go further to address the “totality of circumstance” inherent in a situation and create an objective standard for using the exception. “We hold that, on these facts, there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity, rather than adherence to a police manual, is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.” Id. at 656-657, emphasis original.

“In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that, to some degree, we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. As we have in other contexts, we recognize here the importance of a workable rule ‘to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’

But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” Id. at 659-660, cites omitted.

The Quarles decision created a very narrow exception to Miranda that relies upon both circumstance and an immediate danger to either the safety of officers or to public safety. It creates and exception that is neither indefinite in duration nor open-ended in scope. The inherent danger lies in expanding the exception beyond what SCOTUS recognized in Quarles. As noted by Anthony D. Romero, the executive director of the American Civil Liberties Union, “The public safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect. The public safety exception would be meaningless if interrogations are given an open-ended time horizon.”

When view concurrently with the fear mongering of Sen. Graham, this decision to pursue questioning of must be watched with a suspicious eye. In a time of encroaching authoritarianism, his comments must be taken as jaundiced and pro-authoritarian at the least. The actions of the FBI must also be viewed in this light considering this is an American citizen arrested on American soil being stripped of their rights not just in the heat of the moment in a calculation of public safety, but in a post arrest rather direct and open manner.

Is this all in accord with a steady march trampling civil rights and the rule of law to establish a perhaps permanent state of martial law? Does Graham’s ready willingness to abandon the Constitution trouble you? Does the further expansion of the “public safety exception” to Miranda cause you concern?

Who is the real “enemy of the state” as composed of “We the People” and our attendant Constitutional rights? Those who would use terror as a tactic? Or those who would use terror as both an excuse and tool to strip of us of our liberty under the color of authority? Are we sliding into martial law (as also questioned this weekend by fellow guest blogger Mike Spindell)?

What do you think?

Source(s): Huffington Post (1, 2, 3), Washington Post, Twitter (1, 2, 3, 4, 5), NDAA (.pdf), The New York Times, Miranda v. Arizona, 384 U.S. 436 (1966), New York v. Quarles, 467 U.S. 649 (1984),

Kudos to fellow guest blogger Elaine Magliaro for forwarding the Greg Ball story to me as I wrote this column.

* There are two other exceptions to Miranda, but they are not “true” exceptions – the routine booking question exception and the jail house informant exception – in that they serve more as clarifications as they are consistent with the holding in Miranda where the Quarles public safety exception is a clearly defined departure from the principles and holding of Miranda.

~submitted by Gene Howington, Guest Blogger