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
What kind of parents who live in the south would ever name their male kid “Lindsey”? It dont fit with “I’m a cracker, you’re one too, gonna take good care of you.” And where does he come up with that dumb grin all the time? He looks like some character off of Saturday Night Live back in the days 30 years ago when they wanted to bomb Iran.
WELL SAID Mike Appleton:
“The accusation that we are criminalizing war is both absurd and subversive. The real threat comes from our insistence on militarizing crime. We glorify criminals when we treat random violence as the actions of warriors.”
Might I quote this in the future?
Something that hasn’t been discussed yet is will this “inspire” others to act in a similar manner? These guys went out in a blaze of glory, almost.
The Kabuki Theater (that I thankfully missed) is surely imprinted in the minds of the masses, especially those that may not be of sound mind or body.
Will I need to register my 22 quart pressure cooker now? Must I provide a “need” to own one too?
ON a side note, this past Wednesday, on my way into work at the Buffalo Airport, they had a “Police” Checkpoint, I was ordered along with a few others into a “holding lot” whereby I was ordered to turn off my car, put it in park and they proceeded to search my vehicle. The “officer” (NFTA Employee) saw my name tag for the Rental Car Company I work for and said, “You work here?” I replied that I did, he then said I was “free to go”.
I was not under arrest, I was not suspected of committing a crime, I was not “free to go” until they decided I was not guilty of anything. Add to that one of my coworkers that came in an hour after me said the “checkpoint” was gone. I guess they don’t work after 5pm.
Orwell nailed it and your statement expresses it perfectly.
“…we treat random violence as the actions of warriors.” We’re all guilty of being warriors until we can prove we are not.
WOW! Gerrilea…Res ipsa loquitur (“The thing itself speaks”)
HumpinDog: Your language sometimes does not get typed right on this Dogalogue Machine. It is Enemies of the State. Not enemas of the people. The latter has to do with “of the people by the people”. Enemies of the state are found at the local Muslim Brotherhood Mosque. Lets ask our dogs in Boston to get the terriers together and sniff them out. These two brothers may be two peas in a pod but there are more pods of peas in that town to be questioned.
I like the idea of charging Marathon Bomber with the felony murder of his own brother. It gives a new dimension to the Muslim Brotherhood. Also watch the airports and train stations because what plays in Boston dont stay in Boston. It ain’t Vegas. Five will get ya ten that these Tsar Boys had delusions of grandeure. One is already in the promised land. Question the peddle to the metal guy before he croaks.
There’s a good piece on The Daily Beast about these shithead’s mother. All you truthers will be happy to know she’s w/ you folks!!
Who are the enemies of the people? Forget enemies of the state for a moment. Some adages can help at this stage of our history.
Dont trust anyone under 30.
Caps backwards means crap in underwear.
Any Fundamentalist is mentally stuck on first base.
Send Stan back to his Stan. But not Stan The Man or Stanley Tools.
Carmen Miranda warned you once– think twice.
Kill your brother in the commission of crime and guess what, you do the time.
Mirror mirror on the wall, prison cell or bathroom stall, whose the fruitcase looking back, must be Ivan doin smack.
— nuff of those
This dog thinks that the opCays gotta get a good dog and follow his nose to the nearest neighborhood mosque. Five will get ya ten that there is one near the two Schmucko Brothers’ abode. Getta a warrant and go inside. Put the Koran aside and look for emails and examine the trash. Punks like these two Muslim Brothers have mentors. The Muslim Brotherhood is like a dogpac only it is garnered together by wishful thinking and hate rather than dog bisucits and story telling. So follow the Muslims to their pac and find the others doing that religious smack. There you will find the enemas of the people.
Lindsey Graham’s opinion is that the suspect be held as an enemy combatant
Obama’s opinion is that the man can be “legally” murdered without trial
The man is a US citizen and should be given the rights of a US citizen. While his alleged actions were acts of terrorism they were not acts of war. As such he should be treated like a criminal suspect.
David Blauw 1, April 20, 2013 at 8:00 pm
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 ?
============================================
Gene H has isolated some of the essences of that dynamic in this post of his.
But let me set the background to my response to your comment.
The U.S. government has forever infiltrated groups it sees as a threat to policy (and more so now than at any time, if you consider NSA spying on Americans to fit into that slot).
They gloss over that meddling involvement by saying that they infiltrate groups that “are a threat to the public.”
That is at once obvious bull, if we note the recent post by Mike S and a comment made up-thread:
In other words, did the press go into Hollywood Drama Queen Series Mode when a greater danger to the public was happening in Texas?
Mike S was quoting Bob, who did a rant on Mike’s recent post.
A rant that was saying “why focus on a minor threat to the public, when there are dynamics ongoing that are orders of magnitude greater than this Boston Marathon case?
He was, among other things, focusing on lax regulation of very dangerous industries which Oil-Qaeda is constructed of.
And in essence he was also pointing out that Oil-Qaeda is a greater threat than two guys with pressure cookers and gunpowder (Gulf oil spill, addiction to finite resources, warmongering empire-ism, dangerous nuclear sites and bombs, The Sixth Mass Extinction, man made destruction of The Climate Cycle, etc.).
Yet, these greater dangers get 1 second of coverage compared to the drama queen 24/7 focus on this case by Qil-Qaeda’s mouth pieces.
Why did you, Mr. David Blauw, and why did I, Dredd, have to learn about the morphed clone of the religion of the Roman Empire Warmongers from places other than our news and information media?
It is because “Martial Law”, the subject of Mike S‘s post, and “Who or what is the real threat”, the subject of Gene H‘s post, expose greater enemies than the ones we are informed of in the incompetent and deranged drama queen media.
That is very serious, and it is worthy of our concern.
If they are trying to ruin the American tradition of justice that evolved in modern times … a tradition informed by our ancestors in the crucible of oppression and tyranny … then to replace it with authoritarian tyranny, we must resist.
Especially when it has been done by the genetic descendants infected still with toxins (Mithras or Mythra) that ride the streams of power, corrupting minds who think power is nothing to worry about.
For America to fall, sickened with tyranny, would be a tragedy forever.
And so we all continue to build anti-bodies: more clear thought … better emotions … better intellectual dynamics, better analysis, and the Constitutional laws that are under attack.
Also, like the microbes, we must keep in touch with each other and preserve and protect the Internet.
The microbes keep in touch with molecular “words”, we do it with the language of reason coming from most of us, not the few.
Our analysis does not originate from some propaganda central., but emanates from the hearts of all of us who want to preserve America in peace.
We are not the first cowboys to carnival in this type of bull rodeo, riding a “mad bull that has lost its way” (Stones – Gimme Shelter):
(Proverbs). Lindsay’s madness has been around as long as the toxins that cause his disorder.
Going on with the proverb:
The bully religion (Mithraism) in all its variety, depending on the culture being infected, is a sickness on our society and a deadly threat.
But in this winter we prepare for summer, in this weakness we build our stronghold in the rocks of a free people’s ideology, we have no king because freedom whispers the way in all our ears, so that we proceed in that direction naturally, and we have people like us in the kings palaces whom the king is unaware of.
We have infiltrated the kings palaces.
Be patient, resist, and continue to criticize the fools in government while we love and appreciate those in government who are not fools.
They are working for us all, but most likely we do not know their names, we only know their spirit.
Elaine M.
Another one:
http://jonathanturley.org/2013/04/20/who-is-the-real-enemy-of-the-state/#comment-545123
Mr. “So, scum bag #2 in custody. Who wouldn’t use torture on this punk to save more lives?”
mespo,
The worst sort of coward is a chickenhawk like Dick Cheney who managed to avoid ever going to the field. Didn’t ole Dick Vader get five deferments?
“There is but one coward on earth, and that is the coward that dare not know.” ― W.E.B. Du Bois, Dusk of Dawn
Mike A:
“The worst sort of coward is not the man who runs from the battlefield, but the man who runs from liberty.”
****************
I’d take slight issue with you. The worst sort of coward runs from the field and then justifies it as some act of patriotism. That’s the hypocritical coward.
Lindsey Graham is one of the most superficial thinkers to ever take his seat in the US Senate. Listening to him is like a session with a kindergartener. Here’s one of my favorites:
‘“The demographics race we’re losing badly, We’re not generating enough angry white guys to stay in business for the long term.”
As if a major US political party is duty bound to appeal to the lowest of us and to create them when there’ s not enough of them..
Guess Gene… It’s only available in your area… Which is not fair…..
…. Well… Good news for mespo… Blue Bell is now available in Richmond…..
Well said Mike A…
Well, after “decimating” Terror in Iraq.
While “annihilation” of terrorists in the barren mounts of Afgan is almost “accomplished,” we need new pastures for activities edifying our freedom and security.
Did you notice the brand new military-style armoured vehicles sprouting in Boston? Were they ordered and built to quell demonstrations? to quiet ‘instigations?’
This is merely an aperitif.
“The real threat comes from our insistence on militarizing crime. We glorify criminals when we treat random violence as the actions of warriors.” (Mike A)
Well said!
The worst sort of coward is not the man who runs from the battlefield, but the man who runs from liberty. The former feels shame and remorse for his actions; the latter attempts to justify them. Lindsey Graham personifies moral cowardice. Thank you, Gene H., for calling him out.
The accusation that we are criminalizing war is both absurd and subversive. The real threat comes from our insistence on militarizing crime. We glorify criminals when we treat random violence as the actions of warriors.
Another comment about the Miranda exception to Public Safety.
In my view to make the issue more acceptable to the Supreme Court decision allowing this would be only to ask questions relating to clear and present dangers, such as any booby traps, other bombs, loose material, and other persons planning the attacks.
After that phase has been completed then standard Miranda procedure should be followed.
Personally, I don’t think the evidence gathered in the Public Safety exception should be used in trial but can be used to establish probable cause to arrest, but should be admissable in any subsequent action against other actors as far as chain of evidence is concerned. It may be admissable per the court decisions but I think excluding it from trial might be a more prudent approach.
I also believe there will be more than enough evidencde to be presented in trial to make it work even if he clammed up.
It seems trying the defendant in this terrorist act, as he is a US citizen within the territory of the US, would violate the posse comitatus law and the Insurrection Act because it would be equivalent to the military enforcing the law against a civilian.
We are not in a declared war, and the civil authority was not incapable of maintaining order as is required by the amended Insurrection Act. The state authority to muster the local militia or national guard was not to my knowledge declared by the governor as being part of a martial law declaration, but did assist. Nevertheless the federal permissability of the military tribunal would not be triggered.
travelinglimey:
This is not about making “too much fuss about the Miranda statement.” The “fuss,” as you call it, is over preservation of the Constitution. The latest nonsense from the lips of Lindsey Graham is symptomatic of a much larger problem.