By Mark Esposito, Weekend Guy
Ahmed Abu Khatallah’s boat docked yesterday and the reputed Benghazi attacks mastermind was met with a contingent of U.S. Marshals, Navy security and a phalanx of Justice Department types all eager to hear his gilded version of events and to usher him to a US federal courtroom near the White House where the processes of the US justice system could start slowly grinding now in earnest. He pled not guilty for anyone interested. Before his arrival, however, a cacophony of Republican lawmakers decided to weigh in on his treatment aboard the trans-Atlantic cruise ship, the USS New York, provided by the Navy.
As many know, Abu Khatallah was captured in a clandestine operation conducted by US special ops aided by shadowy figures from both inside and out of the Libyan power structure who lured him to a villa where US forces made the arrest. Abu Khattallah, designated by the State Department as a global terrorist, was regarded as a prime suspect due to his affiliation with a group he helped to found and known as the Ansar al-Sharia. A fundamentalist militia group that rose to power after the fall of Gaddafi, it has claimed responsibility for the attack against the U.S. Embassy and American school in Tunis, leading the Tunisian government to declare it a terrorist organization. The group has been implicated in attacks against Tunisian security forces, assassinations of Tunisian political figures, and attempted suicide bombings of locations that tourists frequent. Not exactly the kind of guys you bring home to dinner.
Abu Khatallah’s capture was coup for an administration looking to change the dialog on the Benghazi attack which left four Americans dead including US ambassador J. Christopher Stevens. Criticized for everything from the response (or lack thereof) to the attack by US security forces as well as even the characterization of the attack itself, the administration has been attempting to change the narrative since 2012. In his new book, Blood Feud, excerpted by the New York Post, author Edward Klein claims President Obama pressured then Sect’y of State Hillary Clinton to issue a release stating the attack was a spontaneous uprising relating to an obscure internet video criticizing Islam. Knowing the attack coincided with the anniversary of the 2001 attacks on US soil, Clinton bristled. According to Klein, Clinton said, “Mr. President, that story isn’t credible. Among other things, it ignores the fact that the attack occurred on 9/11.” But the president was adamant. He said, ‘Hillary, I need you to put out a State Department release as soon as possible.”
Against this political backdrop, Abu Khatallah’s handling had high stakes politically as well as serious system of justice ramifications. His questioning began without benefit of his Miranda rights and like so many alleged terrorists, Abu Khatallah couldn’t stop talking. He kept talking, denying his role, but doing the “tell-all” about everyone else he knew even after his was read Miranda warnings. Miranda, as most folks know, harkens the landmark Supreme Court case declaring criminal suspects must be advised of their constitutional rights to counsel and against self-incrimination before questioning. The ruling led to the exclusionary rule which bars evidence obtained in violation of this notice. Though steadily chipped away at by conservative courts since the opinion was written it’s been more or less the law of the land since it bubbled up from Arizona in 1966.
Though a darling of civil libertarians since its uttering it’s been just as much a step-child to Republicans. Nixon and Reagan both ran against the idea of so-called Miranda rights and countless other Republicans saw it as a boon for the guilty based on a “technicality” summarized ever so succinctly by Boston Police Commissioner Edmund “Big Ed” McNamara who noted his frustration saying, “Criminal trials no longer will be a search for the truth, but a search for technical error.” The furor died down but the sentiment in Republican circles to eliminate Miranda continued. Republican dominated courts joined in confirming numerous exceptions including the public safety exception which allowed the dispensing of Miranda warnings by the police interrogators if ” necessary to secure their own safety or the safety of the public.” That case involved a gun hidden in a supermarket by a robbery suspect that could have been found by children. But like so many cases where the facts seem to justify the principle espoused, other facts don’t fit so easy with our sense of justice and fair play.
Fast forward now to modern-day and the so-called War on Terror. Republicans seized on Miranda again shortly after the 9/11 jet attacks to insist on a weakened protections for terror suspects. A national debate ensued over enemy combatants versus criminal suspects. What were terrorists? International criminals bent on havoc or a non-uniformed army who declared war on the US and its allies ? President George Bush chose the latter and the war on terrorists and Miranda was back front and center. Republicans have consistently decried Miranda protections even on those occasions when suspects were processed in American courts rather than the military tribunal system handled by the US armed forces for enemy combatants in the holding center at Guantanamo Bay. There in a not-so-distant US military base, Miranda rights are just a pipe dream.
Since 2001, Republicans have mounted a constant drumbeat against Miranda protections for terror suspects. In 2010, Republicans from every quarter decried the use of Miranda in the interrogation of Umar Farouk Abdulmutallab, the Nigerian man behind the failed Christmas Day airline bombing plot. The Huffington Post reports that Sen. John Cornyn (R-Tex.) said of the news that Shahzad was cooperating even after getting his Miranda rights read to him: “That is a stroke of good luck. What if he had not waived them and just quit talking, said ‘I want my lawyer’?”
“Maybe we got lucky and [Shahzad] said I will go ahead and talk to you anyway,” said another Senate Republican, Jon Kyl (R-Ariz.), after learning the same. “But you didn’t know that when you read [him] the rights. So I stand by what I said — it is better in these kinds of cases to get the intelligence first and then, if you decide you want to proceed with an Article 3 prosecution, then read the Miranda rights.”
Senate Minority Leader Mitch McConnell (Ky.) went further writing in a letter to Holder that, “We remain deeply troubled that this paramount requirement of national security was ignored — or worse yet, not recognized — due to the administration’s preoccupation with reading the Christmas Day bomber his Miranda rights.” Preoccupation with constitutional rights a bad thing? For Senate Republicans it surely was.
In March 2011, Rep. Lamar Smith, R-Texas, filed the Ensuring the Collection of Critical Intelligence Act of 2011, which required the Justice Department to consult with the director of National Intelligence and the Secretary of Defense before giving terrorists Miranda rights. That bill died in committee, but nearly identical language was included in the 2012 defense authorization bill which said in part, that before seeking an indictment or otherwise charging an individual in a federal court, the Attorney General shall consult with the director of National Intelligence and the Secretary of Defense about “whether the more appropriate forum for prosecution would be a federal court or a military commission; and whether the individual should be held in civilian custody or military custody pending prosecution.” This was an end run around Miranda by diverting a suspect to the nearly Miranda-free zone of the military commissions. It also made the charging decision a political one rather than one based on the nature of the acts of the suspect.
In 2013, in the aftermath of the Boston Marathon bombings, House Intelligence Committee Chairman Rep. Mike Rogers (R-Mich.) demanded answers from Attorney General Eric Holder on why the DOJ allowed a magistrate judge to inform terror suspect Dzhokhar Tsarnaev of his Miranda rights while the FBI was in the midst of interrogating him earlier this week. Sounding apoplectic, ex-FBI agent Rogers said, “We can’t have, in a case like this, the judiciary deciding, because it’s on TV and it might look bad for them … that they were going to somehow intercede in this. It’s confusing, it is horrible, [a] God-awful policy, and dangerous to the greater community,” he said. “And we have got to get to the bottom of this, and we’ve got to fix it right now.” Ok, then. How about an aspirin or a quaalude there Mister Agent Rogers? By the way, Tsarnaev talked, too.
Now in 2014, Republicans are still complaining about reading Miranda rights to suspects who still decide to talk. “I have serious concerns that conducting a rushed interrogation onboard a ship and then turning Abu Khatallah over to our civilian courts risks losing critical intelligence that could lead us to other terrorists or prevent future attacks,” Sen. Kelly Ayotte, R-New Hampshire, said in a statement. Criminal defense lawyer … yep I said that right … South Carolina Sen. Lindsey Graham chimed in that, “If they bring him to the United States, they’re going to Mirandize this guy, and it would be a mistake for the ages to read this guy his Miranda rights.” Graham must be the most conflicted man in Washington DC and that takes some doing.
In its defense to following the constitution, the White House has pointed out that “they have successfully tried a number of terrorists domestically and that no new captives have gone to the Guantanamo Bay detention facility in years.” Not exactly a “Four score and twenty years ago” defense of the union or the constitution that makes it so, but it’s a start.
Abu Khatallah was appointed a public defender, Michele Peterson. He was ordered to remain in custody until hearings set for Wednesday and Friday. No comment yet from Republicans yet on that announcement or whether Gideon v. Wainwright is yet another liberal impediment to the War on Terror.
The American public’s reaction is mixed to Miranda protections for terror suspects with just about 51% in favor. What do you think?
Source: CNN
~Mark Esposito, Weekend Contributor
By the way and for better or worse, the views expressed in this posting are the author’s alone and not necessarily those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art is solely the author’s decision and responsibility. No infringement of intellectual property rights is intended and will be remedied upon notice from the owner. Fair use is however asserted for such inclusions of quotes, excerpts, photos, art, and the like.
Al – just a factoid about Carmen Miranda, she carried cocaine in her Cuban heels which she distributed on the set of the films she was on. The heels were hollowed out for her to carry the drugs.
PCS and BFM,
I rest my case.
Madison said the Preamble, Constitution and Bill of Rights were sufficient and that the Constitution was placed in jeopardy with each subsequent amendment.
The Preamble, Constitution and Bill of Rights have been perverted and corrupted to the point of incoherence; extrapolation to statute and common law is effortless. An excellent example is the naive redundancy of “hate” laws.
America is vertiginous from an overwhelming expanse of law which is orders of magnitude beyond its ability to assimilate
The degree of difficulty does not relieve a citizen of his duty.
In the military, the requirement is a sacrifice of the totality of life itself. Citizens might endeavor to familiarize themselves with the laws they intend to violate.
No one reads the complete business section, he reads only about the companies and stories that effect him.
The legislative branch must address the governmental and legal “Frankenstein” it has created.
Charles Manson – You have to be careful not to attribute all things to the Founding Fathers. They did not speak with a hive mind. Patrick Henry opposed the Constitution all together.
Paul:
That’s why I picked that one.
Pete:
I see nick in more a tight sweater and leotards. To each his own.
Bob, Esq:
Since I answered your questions how about you taking on the one I asked Bruce at 8:53 pm? What degree of due process would you afford an enemy of the nation in your sights and consisting of your own fellow citizens? Please don’t beg off by claiming CSA soldiers were not fellow citizens. Neither the courts nor Lincoln ever took that view.
Bob, Esq.:
“If Sheikh al-Alwaki, an American citizen, was an alleged pedophile suspected operating a vast sex slave trade based in Yemen, what legal principle would bar you from simply killing him with a drone?
The U.S. can kill suspects based on the level of difficulty in bringing them to our shores for justice?”
**************
If that’s more than a rhetorical device, it’s either intentionally obtuse or downright disingenuous. We were talking about enemies of the US engaged in active war against us not some pedophile who violated US law. There is a dramatic difference between the two as any bright eighth grader could tell you. Both are despicable but the former gets no protections in my view and the latter needs to be brought to justice and afforded due process. To suggest my argument says otherwise is simply wrongheaded.
Nick Spinelli
Bob Esq, w/ the knockout! Form a Howard Cosell voice in you head. “DOWN GOES ESPO, DOWN GOES ESPO, DOWN GOES ESPO!”
Bob, You are becoming a prime time player here!
============================================
rah rah rah
sis boom bah
bet you’re cute in a pleated skirt with some pom poms, nikki
Bob, Esq.:
I think I was referring to enemy combatants captured on or near the battlefield. To conflate them with US citizens over whom we have jurisdiction and control intentionally omits an important distinction recognized in US and international law. I’ll say it again, I have no problem with detention of enemy combatants like I have no problem with detaining POWs in our prior wars. Likewise I have no problem if the government wants to trigger the mechanisms of our legal system and try them under US law. That’s the prerogative of the attacked state in my view and I have to wonder why you spend so much time and energy fighting that notion. That’s not concern for due process; it’s masochism.
Bob Esq, w/ the knockout! Form a Howard Cosell voice in you head. “DOWN GOES ESPO, DOWN GOES ESPO, DOWN GOES ESPO!”
Bob, You are becoming a prime time player here!
Does Carmen Miranda have some granddaughters. Why would anyone want any Miranda rights if she is long gone?
mespo – and I do appreciate your taste in literature.
Bob, Esq.
R E M E M B E R:
It’s never an act of Tyranny when a president can claim he’s allowed to have his citizens executed at his will…
… Or is it, it’s never when Obama’s that President?
Bruce
Bettykath What happen to the rights of the American citizen Obama had droned ?
—————
I’m opposed to Obama’s kill list. There is no due process. The drones kill without regard for guilt or innocence and without accountability.
Mespo (today): “when we bring fugitives like Abu Khatallah to American shores by our choice, the domestic law of the US takes effect and we owe him and ourselves the protections of our constitution.”
Mespo (two years ago): “I have no issue with indefinite detention of our enemies without access to the legal remedies they profess to detest for as long as it takes to completely and utterly defeat them in battle or cowl them into submission.”
Mespo: “Where, when, and how he’s brought to justice matters, and in this case he’s in our grasp and thus amenable to constitutional protections. I know you disagree with my distinction between foreign policy and domestic enforcement of the laws, but ask yourself is that distinction any more wrong that your reflexive disdain for Obama when he does precisely what you wanted him to do in affording this likely terrorist his rights under our constitution? A decision I applaud, btw.”
Mark, I have no reflexive disdain for Obama or you for that matter.
I simply pointed out how your take on the NDAA of 2012, and the “war on terror” in general, is bereft of principle; evidenced by your contradictory stances from today and two years ago.
Mespo: “One of the reasons I have no problem with the so-called “droning” of American citizen Sheikh al-Alwaki was the difficulty in bringing him to our shores for justice. Had Abu Khatallah presented the same problem (he didn’t as nick points out), I would have had no problem with a strike on him.”
So the American citizen can be killed without trial; with no greater rights than a Libyan on foreign soil?
How does that phrase go?
He has abdicated Government here, by declaring us out of his Protection and waging War against us?
If Sheikh al-Alwaki, an American citizen, was an alleged pedophile suspected operating a vast sex slave trade based in Yemen, what legal principle would bar you from simply killing him with a drone?
The U.S. can kill suspects based on the level of difficulty in bringing them to our shores for justice?
The only principle you’re operating on is the one used by Charles Bronson in Death Wish
“We know who the guilty ones are”
“And it’s only the guilty ones who wind up on the kill list.”
Ah, the Esposito brand of Due Process.
Mespo: “However, when we bring fugitives like Abu Khatallah to American shores by our choice, the domestic law of the US takes effect and we owe him and ourselves the protections of our constitution.”
Really? It seems that Section 1021 of your beloved 2012 NDAA would beg to differ:
( I cited the section but it didn’t post)
Nonetheless, I must have missed the “American Shores” exception; since it doesn’t exist.
On a poll update, about 70% of our respondents want Miranda rights afforded to terror suspects with about 10% saying they deserve nothing. Another 10% takes a middle ground approach while the last 10% wants an all expense paid trip to the Chateau d’If for terror suspects.
I voted for the Chateau d’If. Only the best for our terror subjects. If it was good even for Edmund Dantes it is good enough for them.
Bruce:
“Bettykath What happen to the rights of the American citizen Obama had droned ?”
*********************
I’ll ask you a question I posited before on this topic: Were you the commander of US forces at the Copse of Trees hard by the angle on the Gettysburg battlefield on July 3, 1865 and just as Pickett’s Virginians came out of the tree line to march about a mile uphill to your position in an attempt to annihilate you and your men, would you have insisted on the same constitutional protections for those fellow American citizens including a status hearing and due process protections prior to giving the order to fire?
Bob, Esq.
I wanted to add that I’ve read JT’s articulate reply to Sen. Levin –several times, in fact — and I disagree with him. I said then that proof of this perceived harm would be seen in the future and to date, nothing has come of all the dire predictions of the fall of individual rights with American citizens being detained without charges as enemy combatants. Is is possible that unscrupulous men can pervert existing laws and their interpretations to deny our rights? Sure, but what else is new. That’s why we have courts, judges and juries.
Bob, Esq.
It’s really an easy reconciliation and I don’t see any issue either moral or legal. In matter of foreign affairs where we have to strike beyond the reach of our laws, I have no problem killing and maiming combatants by whatever means are available. However, when we bring fugitives like Abu Khatallah to American shores by our choice, the domestic law of the US takes effect and we owe him and ourselves the protections of our constitution. One of the reasons I have no problem with the so-called “droning” of American citizen Sheikh al-Alwaki was the difficulty in bringing him to our shores for justice. Had Abu Khatallah presented the same problem (he didn’t as nick points out), I would have had no problem with a strike on him. Where, when, and how he’s brought to justice matters, and in this case he’s in our grasp and thus amenable to constitutional protections. I know you disagree with my distinction between foreign policy and domestic enforcement of the laws, but ask yourself is that distinction any more wrong that your reflexive disdain for Obama when he does precisely what you wanted him to do in affording this likely terrorist his rights under our constitution? A decision I applaud, btw.