The man who apparently thinks the Constitution
and our laws are optional.
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
This would be comical if it were not so serious. At first, I thought it likely the bombers were pros, because of the directional blast and use of shrapnel. The pressure cooker bombs worked almost exactly like a Claymore mine, and cut the legs out from under people for about the same range as a Claymore.
However, when my son called me to tell me photos of the suspects had been released, I knew then they were not pros. For one to have his face uncovered and not wearing large sunglasses, baseball cap on backward, gave him away. The other one did have on shades and his ball cap partly covering his face; however, the fact they were together showed this was not a professional operation. If they did not make any effort at disguise, and had to know they would be on hundreds of cameras, that tells me a lot about them.
As for the bomb’s relative sophistication, there are lots of instructions on the Internet on how to build almost anything you want, including a bomb. The bombers were not exactly Beavis and Butthead, but they were dangerous. even if they were sent by some nefarious foreign operation, If they were this dumb, their handlers would have known these guys were just mules, and would not have given them any information useful as actionable intelligence.
Given the fact we now know they are not professionals, there is no reason to treat them as if they are anything more than they are. Murderous crooks and vandals with a homemade bomb. If the justice system worked on the Ted Kaczynski, George Metesky, Timothy McVeigh, Richard Reid and J. B. Stoner cases, how come we need unconstitutional processes in these cases?
Otteray Scribe: They never believed they would be identified and thought they would remain completely unknown. No exit plans, no escape from the area intended. Something just doesn’t make sense, discovery will be lost if that kid dies.
If you believe in America, the real American, the one promised in the Constitution then you really have no choice. Read him his rights, get him a good attorney and make the state prove its case. If you are a scare little chicken-sh1t like Linseed here then you would rather wet yourself p1ssing on the Constitution and American ideals.
I believe in America. I believe in the Constitution. Despite its flaws it is still the best hope we have for a free and fair nation. I am not afraid to live under the rule of law. If this guy can be denied those rights anyone can be denied.
Gene,
Here’s an excerpt from Charlie Pierce’s Esquire post today. Pierce is a resident of the Commonwealth of Massachusetts.
Guns Along The River: A Late Night In Watertown
http://www.esquire.com/blogs/politics/night-in-watertown-cemetery-042013
The one thing we should all remember about this is that it was always a police action. There was no need for Patriot Acts, or for warrantless wiretapping, or for “enhanced interrogation techniques,” or for anything else out that bag of horrors the previous administration filled so fatly after the attacks of 9/11. The waterboard was left in the closet. This was cops being cops, albeit with some fairly impressive modern-day technology. (I didn’t know police helicopters had thermal-imaging capabilities. I will now respect more those signs in New Hampshire that say, “Speed Monitored by Aircraft.”) There has been grinding forensic work ever since the bombs went off. There was all that basic shoe-leather detective work yesterday, house after house, block after block. And that’s not even to get into the horrific events of Thursday night, which nonetheless did not require a military response. Just cops being cops.
And now there should be a trial. And not just a trial, but the greatest, fairest trial in the history of trials. The defendant should get the best possible legal assistance money can buy. The “public safety exception” to Miranda should be allowed to expire. He should get the best jury we can empanel and, if we have to move the trial to Guam on account of pre-trial publicity, then godspeed. And then he should be tried and, if convicted, in the greatest, fairest trial in history, he should get shipped off forever to federal prison, never to be heard from again. We should ignore all the predictable howling from John McCain, and from his maiden aunt, Lindsey Graham. This guy is accused of being a multiple murderer. He committed his crimes against the people of Suffolk and Middlesex Counties in Massachusetts. These were not acts of war. They were crimes, more garish than most. This was a day for cops, not for grandstanding celebrity politicians who were not here this week.
what’s the point in having a legal system if you’re not willing to use it.
Then legal system condemns. Jesus in us does not condemn. Therefore for people to condemn do not have Jesus in them. That also means people had better not kill because they would be condemning themselves to see what hell really is and that is Gods displeased face. God is doing his best to draw all unto him. Those that refuse infinite love will be the loser having an incinerated soul in Gods glory that will be gone forever.
These are all good christian politicians I’m sure
I learned about Mithras on the Turley blog several months ago.
It was noted that Constantine may have cleverly and gradually morphed mithras into the new christian flag and faith of his soldiers.
I wonder if what goes around comes around.
Could the current government and CMIC (corporate military etc)
be turning flag and Christianity back to Mithrasism ?
Boston bombing suspect’s arrest presents intelligence opportunity, legal challenges
http://news.yahoo.com/blogs/lookout/boston-bombing-suspect-arrest-presents-intelligence-opportunity-legal-183858408.html
Excerpt:
Republican Senators John McCain of Arizona and Lindsey Graham of South Carolina went a step further, suggesting Dzhokhar be treated as an enemy combatant like a soldier captured in war. The move drew the ire of longtime McCain aide and speechwriter Mark Salter.
“My friend, Lindsey Graham, is wrong on this,” Salter posted on his Facebook page. “However unforgivable his crimes, he’s a US citizen, arrested on US soil, with, at this time, no known associations with foreign terrorist organizations at war with the U.S. To declare him an “enemy combatant,” and deny him his rights is un-American.”
Gene,
I thought that the comment I made above was on Jonathan’s blog, but it was yours. It works anyway because I think between Jonathan’s opening blog, my followup rant done before reading his and this excellent nailing of the usual unsavory suspects, we have added perspective drowned out by the media in
their Boston coverage. Bob did an excellent rant on my post that he only briefly refers to here. I think it bears repeating in the context you’ve established here:
“Thank you Mike for the much needed bullshit repellent regarding this Boston Marathon thing.
I’m not only sick, but angry at the media and government continually milking this for personal gain.
How is the Boston bombing more tragic than the disaster in West Texas? What does the American flag have to do with capturing a criminal deviant? Why is it that the federal government is always the first to spout tripe like “we will not let the terrorists win.” Win what? The only people taking away our freedoms are the people in the Fed who leverage the fear created by acts and threats of terrorism to their advantage. John McCain and Lindsay Graham are actually calling for treating the suspect as an enemy combatant. WTF??
Where is this great psychological trauma that the media and federal government keeps talking about? How is it worse than what’s happening in West Texas?
I’m so sick of the pissing and the moaning amplified and exaggerated by those who have the most to gain; the media selling it and the folks in government leveraging it for unconstitutional purposes.
This is how you build a nation full of chicken shit pansies willing to give up their rights in alleged defense against irrational fear.”
Despite the SCOTUS ruling I believe that the “Public Safety Exception” is unconstitutional.
I agree with Darren, that the idea of using the public safety exception to Miranda to interrogate this citizen is both abhorrent and unnecessary. If we allow these real enemies of the state to take away our rights, the bombers and al-Qaeda have already won.
Senate Armed Services Committee Chairman Carl Levin is strongly in favor of trying Boston Marathon bombing suspect in federal court.
I have confidence the standard legal systems will be just in trying this person. Just let it happen senator.
Good article Gene. It has become almost predictable there would be some calling for this particular suspect to be tried in a military court. I don’t see how such a court would be applicable here.
As regards the Boston Marathon suspects, will we be permitted to know if either of them, but particularly the alive 19 year old, were on psychiatric drugs? If this is the case & such facts are aired, this could go against the inside enemy plans (read Obama & Co, the Co being neither party in particular). It is highly likely in the case of the younger brother. Nothing else could so help bring on such a dramatic change in character & morality.
To even have the concept of a battle field is a satanic consent strait from the mind of Satan. it gives the illusion that a battle solves a problem. A battle never solves a problem. The lack of a battle is problem solved. The enemy of the state is blissful peace that only Jesus is us can give. That peace looks on a weapon as a soul harming thing. The consent of a state give the appearance of us and them. The devil likes that. That creates a tug and pull between states with one contesting the other to begin a war that both sides feel justified in fighting. The bloody battle starts. Ghent it ends there is remorse. Time passes having the process repeats its self over and over again. That is because there is division of us and them. The perfect ingredients for war. The state is their own worst enemy. The state believe it or not is by third actions s religious as a religions pastor teaching people to war against gays, zoosexuals or teaching people that the nude body is bad influencing laws by not saying to the people that make the law excuse me but God does not teach that nakedness is bad because he made all things nude. Religious person will not do that allowing opp4ressive state laws to continue on and on as time passes. The state does not have Jesus in it hence is its own worse enemy.
http://en.wikipedia.org/wiki/Gregory_R._Ball
“In 2003, Ball was nominated as “Military Volunteer of the Year” for the 11th Wing. He was awarded an achievement medal for outstanding service by General John P. Jumper and was honorably discharged from active duty in January 2005, with the rank of Captain without ever serving in harm’s way. Ball remains in the U.S. Air Force Ready Reserve.”
(Thanks, Gene H.)
Ever notice how Lindsey Graham Cracker always hyper excites the southern drawl when on TV. The only other one who does this so grandly is that jewish guy from VA who wants you to think that he thinks just like a Southern Boy and that is Eric Kantor.
This is cross posted over from the pavlov’s dogs of war comment stream (comment link from anonymously) a compliment to this article by
Glenn Greenwald
guardian.co.uk, Saturday 20 April 2013 09.24 EDT
http://www.guardian.co.uk/commentisfree/2013/apr/20/boston-marathon-dzhokhar-tsarnaev-mirnada-rights
What rights should Dzhokhar Tsarnaev get and why does it matter?
The Obama DOJ says it intends to question the Boston bombing suspect “extensively” without first Mirandizing him
critical intrinsic points:
“But there’s another reason why I found Democratic outrage over Graham’s statements to be confounding. The theory on which Graham’s arguments are based is one that the Obama administration has vigorously embraced with the full-throated endorsement of most of its supporters: namely, that the US is “at war”, and that anyone who takes up arms against the country or tries to kill Americans is not entitled to basic rights – even if they’re American citizens. As Graham told the Washington Post, his view that Tsarnaev is not entitled to these rights is grounded in his belief that the US is fighting a global war and those who fight in it against the US are “enemy combatants”.
It is bizarre indeed to watch Democrats act as though Graham’s theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this “entire-globe-is-a-battlefield” war paradigm – as supporters of Obama’s assassination powers must do and have explicitly done – then it’s impossible to scorn Graham’s views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham’s beliefs are grounded.”
In short Greenwald is implying that the entire mindset; the entire perpetual war paradigm is hypocritical and corrupted rationally. His point is that the Democrats are either so jaded they have lost all perspective, or they are ultimately as culpable as Graham…albeit less obviously so!
I’m afraid that is more than I have time to read, but I’m glad of the post. These days the ‘Enemies of the State’ are a few dozen Al Qaeda operatives & a few million good, thinking Americans like the writer, myself, many of the commenters in these Blogs, Rand Paul and many others. Of course, I am definining “the State” as what is becoming, rather than what it should be, a servant of the people. For those of us who correctly don’t wish to be compared to Al Qaeda, the huge difference is that WE CARE about the PEOPLE of this country & the world in general. Al Qaeda, terrorists in general, Senator Lindsey Graham, & many top operatives in our government, including our enemy president, DO NOT!
Great article Gene.
You know, I’m beginning to think this Boston Marathon thing is turning out to be a blessing in disguise; especially happening at the same time as the explosion in West Texas.
It brings the murky problem of our country slipping into a police state into specific relief.
Anyway, as I said on Mike S’ SWAT article today; I’m so sick of this crap.
We’re turning into a country of chicken shit pansies.
The Boston Suspect hates us for our singular freedom to slaughter children with high capacity assault weapons. Sparkle Princess knows this. You are either with the NRA or against Liberty!
This incident could turn out to be the Rubicon moment for our Republic. We, as a nation, are standing at the fork in the road. Which fork will we take? Freedom or tyranny? The choice is ours. There is no gray area. For me the choice is clear: Freedom. Mirandize this young man, and get on with it. Just sayin’.Over and out.