Who is the Real Enemy of the State?

Sen. Lindsey Graham, R – S.C.
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


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

103 thoughts on “Who is the <i>Real</i> Enemy of the State?”

  1. Indigo,

    Space exploration is probably our first best strategy for continuing as a species.

  2. America isn’t any kind of battlefield. We’re not seeing anything remotely similar to what has gone on in Israel or Northern Ireland.

    For all the rhetoric these sociopaths in office constantly spew about terrorism, nobody anywhere ever points out that all the really damaging attack vectors are not only difficult to defend against, but moreover, don’t seem to be a problem.

    If there were terrorists that wanted to disrupt the American way of life, they could drive cross country bombing the high tension power lines that we depend on, and never get caught…. but they don’t. Or, if there were terrorists that wanted to inflict mass causalities, they could go on a jihadi shooting spree, since guns are legal and abundant…. but they don’t. Or, if they wanted to capitalize on the airplane as the new symbol of terror, they could sit in a parked car by an airport and take potshots at planes taking off with a high powered rifle…. but they don’t.

    I could go on, but I won’t. This war on terror is just an excuse to continue the subsidy system put in place during the Cold War. The continuation of the Cold War mood of paranoia is just a means to an end.

    A new space race would be an equally effective mechanism to ensure the high tech industry keeps its subsidies… but there are decades of antagonistic dogmas the powerful would have to first unlearn.

  3. My comment to Gene H, just up-thread, quotes from the video linked at the end of it, which was a video of an interview of:

    “Ted Gunderson was born in Colorado Springs. He graduated from the University of Nebraska in 1950. Gunderson joined the Federal Bureau of Investigation in December 1951 under J. Edgar Hoover. He served in the Mobile, Knoxville, New York City, and Albuquerque offices. He held posts as an Assistant Special Agent-in-Charge in New Haven and Philadelphia. In 1973 he became the head of the Memphis FBI and then the head of the Dallas FBI in 1975. Ted Gunderson was appointed the head of the Los Angeles FBI in 1977. In 1979 he was one of a handful interviewed for the job of FBI director …”

    (Wikipedia, Ted Gunderson, video here)

  4. nick spinelli 1, April 21, 2013 at 1:52 pm

    Blouise, Agreed. I had my wife read it and asked if she would get facials from this woman. I got a “Are you nuts” look.
    Oh, that makes it clear on its face.

    No Miranda rights for those tuuurrrrriiiiiissssstssssss … can’t you just hear Bush II hissing out his purity?

    Gives new meaning to hissy fit.

  5. Blouise, Agreed. I had my wife read it and asked if she would get facials from this woman. I got a “Are you nuts” look.

  6. Gene H,

    Courageous speak out, reminding me of what an FBI agent said to make him an enemy of “the same but different” state.

    That enemy of the state is this truther:

    I was head of the FBI … Southern California … except for two counties … I was in charge … had over 700 personnel under my command. I had a budget of over $22.5 million dollars.

    We were the elite investigative organization of the world in our day.

    There’s no question who was responsible for the 1993 bombing of The World Trade Center.

    Through their informant Salaam … they [FBI NY] had control of whether to place a dummy bomb or a real bomb.

    They placed a real bomb, and the reason they did was to pass the anti-terror legislation.

    (FBI Agent video link). He has all the documentation to back up his statement, which said documents are in a lot of places, including but not limited to federal court records.

    He is an enemy of the state because he spoke something truther rather than fictioner.

  7. nick,

    Yep, pretty creepy though not unusual. I saw an interview with the sister of the woman who wrote the piece you referenced and in that interview she said that she, her sister (the writer), and their mother started using this woman for facials when she worked at a spa. When she was fired from the spa, she called them and told them they could continue to come to her for facials at her apartment. Sounds like she ran a facility out of her apartment and thus kept some of her patrons after she was fired.

    Lots of people run such small businesses like this out of their homes … under the radar so to speak.

  8. Porkchop 1, April 21, 2013 at 12:42 pm

    What happens if retained counsel marches into the hospital and demands to see his client?
    It will depend on the type of hospital.

    What type of doctors do they hire.

    They will have one type of cognition of they have jack boots on, another type of cognition if they understand the American aversion to tyranny.

  9. None of this is to say that Tsarnaev can’t simply invoke his right to counsel and right to remain silent even before he receives his Miranda warning. A Miranda warning does not create either of those rights — it is meant to inform the uninformed of the preexisting rights. If after living here for ten years, he does not know of those rights, he really has failed to pay attention (which is certainly a possibility). The interrogators can seek information under the exception, but he doesn’t have to give it.

    Of course, at this point, he is probably under sedation and unable to think clearly, if at all. That leads to a different question regarding admissibility, I think, of any statements he makes.

    I would also think that someone would already have tried, on behalf of the family, to retain counsel for him. There are no doubt plenty of willing defense attorneys — this is a high profile case that will lead to publicity for counsel.

    What happens if retained counsel marches into the hospital and demands to see his client?

  10. Pete,

    I think the original const has been recycled and is now the fiber of the toilet paper issued to the legislative and executive branches….

  11. Blouise, Yes. The DB piece was an interview of a young Cambridge woman who would go to this woman’s spartan apartment to get facials..kind of creepy.

  12. nick,

    Re the truthers … I haven’t seen the Daily Beast piece you referenced yet but the crazy aunt in Canada sure sounded like a truther too.

  13. Why don’t we end this silly debate with one word, crime “can” pay. It can pay VERY WELL. However, the downside is big, being prison or death. People like Pablo Escobar, Carlos Lehder, Whitey Bulger, etc. have experienced both the reward and risk. Pablo Escobar was one of wealthiest people in the world. He died on an apartment rooftop in Medellin. However, seeing the folks engaged in this semantic debate, I doubt there will any agreement.

  14. Tony C. 1, April 21, 2013 at 10:44 am

    If Crime doesn’t pay, then why do criminals consistently engage in it?
    Because they are banksters of Oil-Qaeda, the state sponsored enemy of the common good.

  15. Traveling Limey: Crime doesn’t pay in the long run, battles rarely solve anything,

    If Crime doesn’t pay, then why do criminals consistently engage in it? They engage in it rationally, not as outbursts of uncontrolled emotion. They see something they want and they steal it. What rational person would steal if they thought it would cost them?

    If Crime doesn’t pay, why do those burglarized, mugged, defrauded out of their property and retirement funds remain destitute? Where did the money, the jewelry, the cars and entertainment systems all end up? All of that was valuable, all of that was taken from them, and certainly the value went elsewhere, it didn’t just vanish.

    Bernie Madoff stole billions, methodically, for decades. You can claim all you want that his crime didn’t pay “in the long run,” but do you really think spending his last ten years in jail balances out the thirty years he spent living like a billionaire? I certainly see that as a rational choice on Bernie’s part. He remains without empathy for the harm he caused; he says, “Phuck my victims.”

    As for battles, I suggest you read more history. I will agree that individual battles may not be decisive in solving problems, but a series of battles, even a series of wars, do indeed solve problems. The French have what they demanded in the French revolution, equality and a democracy. Our revolution resulted in a democracy replacing what the founders believed was tyrannical rule. Our revolutionary war was the cornerstone of eliminating slavery in this country; and the more abstract “battles” of the civil rights movement (some of which still involved bloodshed) have solved much of the remaining problem of institutionalized inequality and racism.

    If you prefer, we can look at it logically instead of empirically. Battles are fought by two sides in conflict over an issue; presumably one they could not solve any other way, such as by negotiation or compromise, bribery or threats, strikes or protests or appeals to third party pressures or diplomacy.

    Battles are a last resort: Either drop your demands and take your losses before the battle begins (a 100% chance of defeat, with 0% losses for your opponent) or take your chances in battle (even if that is still a 100% chance of defeat, it is unlikely to be a 0% loss for your opponent).

    But battles usually do have victors, wars usually do have victors, and the winning party has their “problem” solved. At a cost, to be sure, but solved. If your problem is tyrannical rule by a King, winning the war means winning at least a final key battle, and winning the war solves the problem at hand, freeing one’s self from the chains of the King.

    If your problem is a foreign dictator that wants to literally rule the world (say, WWII for an empirical example), it is battle that solves the problem at hand and defeats those ambitions.

    It is naive to claim that crime does not pay, of course it does, but it isn’t fair, it is oppressive, and that is why the non-sociopaths among us have chosen to oppose it with battle when necessary; that is why our police are armed and shielded like warriors.

    It is naive to claim that battle doesn’t solve anything, of course it does. Violence is usually not the right choice, but there is such a thing as righteous violence preventing predation and oppression (both physical and financial) that we know is wrong. Battles forcibly take what could not be taken by any other means, and sometimes what must be taken by force is freedom, justice, a homeland, the fruits of your own labor or just a future without oppression for the group of people you love. That applies on the tiny scale as well as the massive scale. A cop may battle to save a single victim, a marine may do battle to save his friend. A country may do battle to prevent being invaded and sacked, a race or religious group of people may do battle to prevent being enslaved or wiped out.

  16. So if they charge the Tsar Boy with felony murder for running over his now dead brother with the stolen car will it make him have a tougher time when he gets to Heaven? Will big bro be mad from getting run over and perhaps raise objectins to his getting admitted? Is it true that first bro in has the right to nix the admittance to heaven of an errant brother. Is that not a major tenet of the Muslim Brotherhood Tenthead Doctrine? . And where can I find on-line the published vershion of the Muslim Brotherhood Tenthead Doctrine? Was thieri Marathon Bombing sort of a rite of passage to get them admitted to the Muslim Brotherhood, or where they already members?

    Inquiring dogs want to know.

  17. ConLawDog: It wasn’t Pershing you big eared Sheltie, it was Sherman. Keep your Kraut- American generals straight.

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