The Ontology of Miranda Rights
One tick I’ve noticed in conservative discourse on the Underpants Bomber case is the idea that Barack Obama, Eric Holder, and the FBI somehow decided to “give” the suspect his Miranda rights, as if they’d somehow created the right to remain silent out of whole cloth. The point of the standard lines about how “you have the right to remain silent, you have the right to an attorney, etc.” is that these are rights that criminal suspects inherently have in virtue of the American constitution. When a law enforcement officer tells someone he’s arresting that he has these rights, he’s not creating the rights, he’s informing the suspect what the situation is.
What’s more, it can’t be emphasized enough that government agencies need to follow some kind of rules or processes. The accused have rights for the sake of the integrity of the system as a whole—it’s not a courtesy we offer to criminals, it’s a procedure designed to produce reliable outcomes. It’s true that in the specific case of the Underpants Bomber the guy seems so obviously guilty that it’s not reasonable to worry about him being railroaded or framed-up. You really could just skip the whole trial part with no loss of reliability in this particular case. But, again, if you just let law enforcement unilaterally which suspects are “obviously” guilty that would cause all kinds of obvious problems. The United States is a big country with tons of different law enforcement agencies. They can’t run around making up the rules on a case-by-case basis. So you follow the rules in all cases, even when it really is obvious that your suspect is guilty.
The underlying issue here, as I’ve been saying, is that conservatives think that any constraint on the state security apparatus is too much. They believe, contrary to all of the evidence, that the rule-bound criminal justice system can’t or doesn’t function and that things would be better if we scrapped all the rules. And, indeed, in the civilian context they’ve worked steadily and systematically over a period of decades to weaken the constitutional protections as much as possible, and bring us as close as possible to their dream scenario of limitless state-sponsored violence. The desire to push certain categories of people (non-citizens) or certain categories of suspects (terrorists) out of the constitutionally protected realm is just part-and-parcel of that broad-based assault on the idea of a rule-bound justice system.
112 Responses to “The Ontology of Miranda Rights”
Register
RSSLogin
Yglesias Tweets
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
February 5th, 2010 at 10:57 am
as your last paragraph suggest, these people aren’t conservatives at all, although they call themselves by that label: no honest conservative opposes constraints on state security apparatus.
now, right-wing thugs? that’s whom you’re describing. accurately. the congressional gop is full of them: in fact, i’m not sure there is a single gop member to whom the label right-wing thug could not be applied (and yes, that includes the likes of collins and snowe, who may be nicer people than some of the true scum, but who vote like right-wing thugs anyhow).
February 5th, 2010 at 11:02 am
I heard James O’Keefe was singing like a bird down in Louisiana. Then they read him his Miranda rights and got him a lawyer, and he shut up.
February 5th, 2010 at 11:06 am
This is a joke. Now watch all the jokers come in here and pretend that this is a catastrophic horror after defending death squads as a perfectly justifiable under the constitution.
I mean, really.
February 5th, 2010 at 11:08 am
This is a significant overstatement. Do all Republican governors, sheriffs, county prosecutors and judges show complete indifference to civil liberties? Is there necessarily any connection between favoring a low tax, small government society and empowering policemen to act thuggishly? Are there no libertarian-leaning Republicans in office in the US? This post is over the top, not up to your usual standards of thoughtfulness.
February 5th, 2010 at 11:08 am
I agree with Howard. One of the main, possibly THE main distinguishing characteristic of a conservative is respect for traditions and institutions. These people are trying to undermine one of the oldest traditions in the western world, the rule of law. Undermining the rule of law is the least conservative thing you could ever try to do. These people are regressives, not conservatives, cowardly Hobbesians who are willing to give up everyone’s freedom so that they will be safe.
February 5th, 2010 at 11:10 am
God damn it, Soullite @3. I had some respect for you until I read the thread you’re referring to…don’t detonate this one as well.
February 5th, 2010 at 11:14 am
Well, modern day conservatism has a branch which favors a pre enlightenment monarchist approach to politics.
February 5th, 2010 at 11:15 am
There’s a paradox at work here. On the one hand, authoritarians (that’s who we’re really talking about) feel that only the use of unlimited state power can keep them safe. But they are afraid of any state strong enough to keep them safe. Which leads me at least to the inevitable conclusion that what they really want is control of the unlimited power of the state, to do with as they see fit.
What is it that Paul says? “Rulers hold no terror for those who do right, but for those who do wrong.” And guess who gets to decide right and wrong, punk?
February 5th, 2010 at 11:17 am
art, first rule of literary criticism is accurate reading: when did matthew say “republicans?”
that said, i personally don’t believe it is possible today to still be a republican and not ultimately support right-wing thuggery, but matthew didn’t call out every republican, he called out “conservatives.”
as for soullite, i’m especially impressed the way he compares a made up concept with real behaviors: did i mention right-wing thugs, by any chance?
February 5th, 2010 at 11:20 am
I don’t know. The Constitution, by its own terms, doesn’t require that criminal suspects be mirandized when arrested; instead, that’s a judicially created obligation imposed on law enforcement because information about Miranda rights are necessary to give effect to rights that are explicitly enumerated in the Constitution. The legal effect of failure to read an arrestee his Miranda rights is, among other things, that post-arrest statements of the arrestee are inadmissible in a criminal prosecution. I think that there’s room for legitimate debate over whether the Underpants Bomber should have been immediately mirandized or whether national security interests instead justified forgoing mirandization in favor of attempts to elicit information at the potential cost of successful criminal prosecution. In fact, I think I’ve seen this discussed over at the Volokh Conspiracy.
February 5th, 2010 at 11:21 am
As usual, the left doesn’t get it.
You’re still framing the “debate” as question of criminal law / rights.
The UndieBomber was treated as a common criminal and Mirandized. He is not a common criminal, he’s an enemy combatant and as such does not have the same rights an alleged criminal would have.
THAT’S the issue. Nice try, though. Really.
One of the major reasons why 9/11 was able to be planned and executed was because we treated Terrorism as a criminal matter instead of a National Security matter.
You’ve either forgotten that lesson or wish to repeat the same mistake.
February 5th, 2010 at 11:26 am
One of the major reasons why 9/11 was able to be planned and executed was because we treated Terrorism as a criminal matter instead of a National Security matter.
Want to put a little meat on that talking point? Some facts would be helpful.
February 5th, 2010 at 11:30 am
The ONLY reason that 9/11 was able to be planned and executed was due to the criminal negligence George W. Bush, who upon reading a Presidential Daily Briefing in August 2001 titled “Bin Laden determined to strike in US” told the messenger, “alright, you’ve covered your ass now.”
So, please pardon my language when I say Fuck You RBIII and your reactionary fellow travelers.
February 5th, 2010 at 11:35 am
The problem with Mirandizing the undiebomber is that they didn’t need a confession from him, as he was caught in the act.
If they don’t Mirandize him, he might talk about third parties, and any statement he makes about them would be admissible. But once you advise someone to shut his piehole, there’s a good chance he will.
February 5th, 2010 at 11:36 am
Oh, btw. Here’s a passage from that August 6th PDB that Bush ignored:
Nevertheless, FBI information since that time indicates patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks, including recent surveillance of federal buildings in New York.
I will repeat myself, FUCK YOU, RBIII YOU GOD DAMNED REACTIONARY PRICK.
February 5th, 2010 at 11:36 am
I’m also a little unclear on the criminal/national security “treatment” dichotomy. I’m guessing RBIII is saying that Bill Clinton should have invaded Afghanistan at about the time of the GOP-led impeachment trial, citing imminent attacks on the WTC and the Pentagon.
Somehow, I bet that if you went back in time and made this happen, the contemporary RBIII would have been something less than a cheerleader for such a “national security treatment”.
February 5th, 2010 at 11:38 am
11: The UndieBomber was treated as a common criminal and Mirandized. He is not a common criminal, he’s an enemy combatant and as such does not have the same rights an alleged criminal would have.
I don’t think I’ve seen a single reason to elevate this guy to Holy Warrior Status in his mind and in the mind of other terrorists instead of making it clear that he’s merely a failed mass murderer. Why would you want to feed these people’s sense of self-righteousness?
February 5th, 2010 at 11:42 am
But once you advise someone to shut his piehole, there’s a good chance he will.
You would think, wouldn’t you? But as any defense lawyer will tell you, getting a criminal defendant to shut the hell up is one of the most difficult things in the world.
February 5th, 2010 at 11:44 am
Jeebus, this post is idiotic. Matthew says that “these are rights that criminal suspects inherently have in virtue of the American constitution”. Which is completely beside the point.
The issue is deciding that Abdulmutallab is a criminal suspect at all. He isn’t. He is an enemy combatant, and should be treated as one.
Let’s remember that the authoritarians in the Obama Administration have decided that enemy combatants don’t deserve Miranda warnings – in fact, the Obama Administration believes that enemy combatants can be assassinated, without warning.
It is kind of pathetic that Matthew doesn’t even understand the most basic issue at hand here.
February 5th, 2010 at 11:44 am
He is not a common criminal, he’s an enemy combatant and as such does not have the same rights an alleged criminal would have.
Huh … We’re at war with Nigeria? I’d have thought that’d have been in the papers. Or do we get to proclaim a priori who is an enemy combatant? If you rob a bank with dynamite are you an enemy combatant? How do you know at the time of arrest? The Underwear Bomber is cooperating just fine, and isn’t turning out to be much of an enemy combatant of any kind.
Or perhaps RBIII wouldn’t mind if the government a priori declared him an enemy combatant for his rhetoric and denied him due process? It’s a thin line asshole.
February 5th, 2010 at 11:46 am
getting a criminal defendant to shut the hell up is one of the most difficult things in the world
I suppose that goes double for anyone silly enough to try to blow himself up via his skivvies, but only succeeds in setting his junk on fire.
February 5th, 2010 at 11:47 am
Let’s be a little more clear about this. Miranda establishes a rule governing the admissibility of evidence in a criminal case. Generally speaking, a statement made by a person in custody prior to receiving Miranda warnings is not admissible in a criminal prosecution. However, if you are interested in questioning someone to gain information for purposes other than for use in a criminal prosecution – such as military intelligence – there is no constitutional requirement that warnings be given or that a lawyer be present, again, so long as any resulting statements are not used against the person in a criminal case. Of course, torture is out of the question, since it is a crime under US law. Abdulmuttalab was in fact interrogated by FBI agents for some time before Miranda warnings were given, and there seems to be some indication that intelligence of value was obtained, although I believe that the Obama administration agrees that millitary intelligence personnel should have been involved in those interrogations (at least that’s what I heard Gates say the other day). The choice is not between Miranda rights or waterboarding. The constitution is not a suicide pact, and properly administered, there is no contradiction between following the law and protecting national security.
February 5th, 2010 at 11:50 am
Nice post, Matt. I learned this in ninth grade; Apparently, our leading “conservative” lights haven’t gotten that far yet.
Proof? Nope. Sorry; thanks for playing.
The score so far:
1993 WTC attack: Treated as criminal matter.
Result: All conspirators in jail for life.
2001 WTC attack: Treated as military matter, with invasion of two countries.
Result: Several suspects caught, but Osama bin Laden walking around free, projecting a clear and consistent message that if you launch an attack on the U.S., you will not be captured or killed.
February 5th, 2010 at 11:51 am
What our friend Al fails to understand is that those of us on the left who support the rule of law can be both outraged at the Obama administration for their support of the status quo in re: “enemy combatants” that you mentioned, and also think that the greater threat to the rule of law comes from the bed-wetting hysterics on the right.
It’s really very liberating being able to hold a nuanced world view. Of all the conservatives who visit this site, I think that you, Al, have the best chance of experiencing this clarity. Just give it a try. You’ll love it!
February 5th, 2010 at 11:54 am
Everybody knows the court settled this issue in favor of conservatives in Dirty Harry v. Punk, overturning Orestes v. Eumenides.
February 5th, 2010 at 11:54 am
democraticcore has it right–Matt simply hasn’t any idea what he’s talking about.
I, for one, stand with Obama on this issue. I mean, the Obama of the 2008 campaign, who said “Now, do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not.”
February 5th, 2010 at 11:55 am
But once you advise someone to shut his piehole, there’s a good chance he will.
Unless he’s well and truly fucked, as this guy is. In his case, cooperation is his best option.
February 5th, 2010 at 11:56 am
Since what conservatives seek to conserve is the social order and power structure (with themselves as the ruling class) by any means necessary, the dismantling of state security constraints is wholly in line with conservatism. Can’t let the proles get too uppity, dontcha know.
February 5th, 2010 at 11:58 am
IANAL, but my understanding is that he was arrested on U.S. soil, not apprehended in Afghanistan… and thus he has Miranda rights, enemy combatant or not.
February 5th, 2010 at 11:58 am
One tick I’ve noticed in conservative discourse on the Underpants Bomber case is the idea that Barack Obama, Eric Holder, and the FBI somehow decided to “give” the suspect his Miranda rights
The problem isn’t that the government gave UB Miranda rights; it’s that they gave him Miranda warnings. Law enforcement doesn’t have to give a suspect Miranda warnings, they just can’t use statements made by the suspect in a criminal prosecution if they don’t. In this case, the value of getting UB to talk far outweighed the value of being able to use any statement he made during his trial.
February 5th, 2010 at 11:59 am
chrismealy @ 25 wins the internet. Shut it down.
February 5th, 2010 at 11:59 am
If they don’t Mirandize him, he might talk about third parties, and any statement he makes about them would be admissible.
That doesn’t make sense. It wouldn’t be admissible against those third parties, since (a) it would be hearsay and (b)those third parties haven’t been arrested and aren’t on trial anyway.
February 5th, 2010 at 12:06 pm
“The issue is deciding that Abdulmutallab is a criminal suspect at all. He isn’t. He is an enemy combatant, and should be treated as one.”
You can stamp your feet and pout like a baby and shout “Is not! Is not! Is not!” until your face turns blue, and you’ll still be on the wrong side of the US Constitution, all relevant judicial precedents, the criminal code of the United States, and every single piece of factual evidence that can be brought to bear on the issue which wasn’t pulled directly out of Charles Krauthammer’s ass, not to mention on the wrong side of policies supported by the previous Republican Administration which otherwise showed virtually no regard for the rule of law.
He committed a federal crime in US airspace. He was arrested and charged with a crime. He was read his rights. He was interrogated. He will be tried in a court of law. He will almost certainly be convicted given the weight of evidence. And he will spend the rest of his life in one of the world’s most secure prison facilities along with a couple dozen other terrorists whose cases have been handled in exactly the same manner. Period. So kindly take your temper tantrums and authoritarian wet dreams and fuck off, so the adults can handle our national security.
February 5th, 2010 at 12:14 pm
Miranda, along with a slew of other court decisions, was designed to incorporate the Bill of Rights onto the states. Until the mid-twentieth century, the Bill of Rights did not apply to the states. (Strangely, I haven’t seen many original intent-ers arguing for a return to that interpretation.) The reason the courts did so was that there was a whole group of people being treated egregiously by the local legal system–assumed guilty, railroaded by unfair trials, and put to death. What the right wing is calling for is a return to lynch law, and it needs to be called out as such. This whole “enemy combatant” stuff is just another way of saying, “We have the right to torture and kill people when they do something we don’t like.” NO, you don’t. Because this is the logic of lynch law.
February 5th, 2010 at 12:19 pm
That doesn’t make sense. It wouldn’t be admissible against those third parties, since (a) it would be hearsay and (b)those third parties haven’t been arrested and aren’t on trial anyway.
Suppose he said “I worked with XYZ, got materials from ABC, and had a safehouse in TSOP.” IANAL, but it’s not hearsay, because he’s not quoting any statements from anyone. It sounds like decent probable cause for search warrants (if TSOP is in the States), or if it’s offshore, then military intel, or the relevant civil authorities. Probably get wiretaps up on ABC as well.
And then, if they are brought to trial, I see your point that the cops can’t just read his statement on the stand – that would indeed be hearsay – but all the physical evidence that are the fruits of his statement would still be admissible. And the guy is free to repeat his statement in court.
But the larger point is that this is totally beside the point of Miranda warnings, because non of the guys statements are being used against him.
February 5th, 2010 at 12:21 pm
The ‘enemy combatant’ label seems to be saying, “You are a member of a legitimate (though evil) political entity. As we are at war with that entity, what you have done isn’t wrong so much as you were just doing it for the wrong side.”
How is that better than ‘criminal’?
February 5th, 2010 at 12:26 pm
The funny thing is…. Was either Obama or Holder there to insist that this idiot get Mirandized? No. The officers in question, having no idea how the prosecution would want to treat the prisoner, played it safe and read him his rights. If, at some later point whoever is in charge of the fearful Al-Underoo terrorist decides he wants to throw the lawyer out on his ass ship the clown off to Guantanamo, they can, but that isn’t the cop-on-the-scene’s call to make. He has to treat it as if all the normal procedures, up to and including trial, are going to be followed.
February 5th, 2010 at 12:27 pm
The issue is deciding that Abdulmutallab is a criminal suspect at all. He isn’t.
What, suddenly terrorism isn’t a crime? Seriously, is it now the conservative position that it is not against the law to commit a terrorist act?
February 5th, 2010 at 12:30 pm
@RBIII: “The UndieBomber was treated as a common criminal and Mirandized. He is not a common criminal, he’s an enemy combatant and as such does not have the same rights an alleged criminal would have.”
The Constitutional Amendments in question refer to “any person”. Period. Not any person except non-citizens, or any person except terrorist suspects, or any person except enemy combatants, or any person except those that [Insert thin end of wedge here.]
According to the USAPATRIOT Act (and Monsanto), WTO-protesters are terrorists. So are Greenpeace activists. Should we waive their rights as well?
The Founders knew what they were doing, and worded the Bill of Rights to apply expansively for a reason. They understood that once we start making exceptions for this group or that, the rule of law will be tossed over in favor of arbitrary dispensation.
The rights in question are not there to protect criminals, as conservatives often complain. They are there to protect the rule of law itself, and thus protect all of us, from tyranny.
February 5th, 2010 at 12:39 pm
Brautigan Says:
“February 5th, 2010 at 11:42 am
But once you advise someone to shut his piehole, there’s a good chance he will.
You would think, wouldn’t you? But as any defense lawyer will tell you, getting a criminal defendant to shut the hell up is one of the most difficult things in the world.”
As someone who has worked both sides of the divide, Brautigan is right. Miranda has misfired because the police never believed in Miranda and developed ways to use it offensively, the lower courts and, eventually, the US Supreme Court have distinguished it to death, and you cannot keep a defendant quiet.
Take for example the case of the citizen journalist who blundered, for some presently unknown reason, into Sen Ladrieu’s office. Can he keep his mouth shut? Was getting him committed to the custody of his parents in New Jersey enough to shut this kid up? No, he goes on the internet, television and every other place he can think of to run off his mouth. All of this will be used as “prior inconsistent statements” if he stakes the stand in his own defense.
People who genuinely believe that reading someone his rights will cause him to “clam up” have absolutely no experience in state or federal criminal practice. It’s good theory but it simply does not work that way in practice, which, I suppose, is why the US Supreme Court has, for all practical purposes, abandoned Miranda.
February 5th, 2010 at 12:40 pm
Uh, has anyone been reading the reports about how Abdulmutallab continues to cooperate, and was urged to cooperate by his family after they were given assurances he would be treated according to US law rather than being Cheneyed repeated in a dark room? This is coming out endlessly better for national security than if we’d gone after him with beatings, hypothermia and stress positions (in which case he probably would have cracked and sent the whole country on endless wild goose chases).
Oh, and btw: calling someone an enemy combatant doesn’t really help you if you want to torture them. Enemy combatants are explicitly protected by Geneva. You can claim that Abdulmutallab is an “unlawful combatant”, which is the term Bush et al used to justify torture. But, uh, no explicit organization, no battlefield, no war. And unlawful combatants are still protected by Geneva, just different clauses.
February 5th, 2010 at 12:45 pm
What, suddenly terrorism isn’t a crime? Seriously, is it now the conservative position that it is not against the law to commit a terrorist act?
Terrorism by al Qaeda is an act of war and a war crime, but not a civil crime.
We have, after all, declared war against al Qaeda (effectively).
February 5th, 2010 at 12:52 pm
Terrorism by al Qaeda is an act of war and a war crime, but not a civil crime.
Well, since we’ve also declared a War on Crime, I guess all crime is war crime now…
February 5th, 2010 at 12:55 pm
Howard #9, substitute “conservative Republican” for “Republican” in my comment #4, and the reasoning applies. The heart of US conservative ideology is favoring a low tax, small government society. How does that ideology dictate empowering policemen to act thuggishly? Did Milton Friedman, F.A. Hayek, or other leading libertarian conservatives ever advocate taking all restraints off police and prosecutors?
February 5th, 2010 at 12:57 pm
It’s really very liberating being able to hold a nuanced world view.
Little chance of that happening with the Rethugs/conservatives, since their response to (almost) everything is a prettied-up version of “Hulk SMASH!”
February 5th, 2010 at 1:05 pm
What an absurd non-debate this is. Of course Abdulmutallab’s actions constituted a crime. If Congress did not intend for acts of terrorism to be prosecuted as crimes, then it would not have passed – as part of the Patriot Act – comprehensive criminal laws defining terrorism as a federal crime. There is overwhelming evidence that Abdulmutallab is guilty of these crimes. There is a plane full of eyewitnesses to his crime and there is of course the physical evidence of his underpants. He faces very serious penalties, and I would think that everyone would be in agreement that the best thing that we could possibly do to this guy would be to punish him as severely as possible. That is exactly what the government is doing. Indeed, it is also the best way to get information from him, as his only hope of mitigating the severe penalties he is facing is to provide information to the government. From press reports, it also appears that is exactly what is happening.
News flash to the right wing: the rule of law works. It is one of the main reasons why the United States is a more successful country than say the Dominican Republic under Trujillo. Locking people up in dungeons by fiat keeps dictators in power, it does not keep nations safe and secure.
February 5th, 2010 at 1:17 pm
Leftists try to make that the Undiebomber terrorist as some kind of ordinary criminal, thus justifying what is being said. What he did was an act of war, and an illegal one at that. The Undiebomber is an enemy combatant, justifying our holding him without indicting him or providing him an attorney. Because he is an illegal enemy combatant, it also justifies questioning him for as long as necessary, which was going on until Holder got all stupid and gave this terrorist his right to remain silent.
The Constitution is a compact between the American people and the government, the group that is supposed to protect the people from external enemies like Al Qaeda. It does not guarantee the rights of those foreigners who are actively at war with us. If it did, that would make the Constitution a suicide pact, something leftists don’t seem to want to admit.
The Undiebomber is not a criminal like one charged with speeding, robbery, murder, or the terrorism committed by Timothy McVeigh. McVeigh and his cohort were the only people involved, not part of a larger group seeking to start a civil war. The Undiebomber, on the other hand, is part of a somewhat large foreign group of terrorists actively at war with the U.S. That makes their capture initially an intelligence matter, not a criminal one. Which makes this statement from Yglesias entirely specious:
That last part is a complete lie, but it’s what is to be expected of leftists like Yglesias. But the fact of the matter is either he and other leftists refuse or are too stupid to understand this has nothing to do with criminal procedure since what the terrorist did was commit an act of war. In that regard, Holder gave the Undiebomber rights contrary to the Constitution; these rights are not guaranteed to those who are members of a foreign power actively at war with the U.S., no matter what the leftists say.
February 5th, 2010 at 1:23 pm
Terrorism by al Qaeda is an act of war and a war crime, but not a civil crime. We have, after all, declared war against al Qaeda (effectively).
Most acts of terrorism are, in fact, civil crimes. Al Qaeda is, among other things, a criminal organization. When someone is arrested for committing a crime on American soil, he is treated as a criminal under American laws. Eighth graders can understand this.
When an incident cannot be handled by law enforcement and the military needs to swing into action to defend the United States, such as on 9/11, then the President is empowered to authorize that type of decision.
We are, however, discussing a guy who set his underpants on fire and was quickly subdued by a lone Dutch soccer hooligan. Insisting that scrambling the F-16s and tossing out habeas corpus rights is the proper way to combat a guy who set his underpants on fire, and is already safely in custody, is just simply moronic.
You can try to argue that hauling the guy off to a secret dungeon and employing “enhanced interrogation techniques” will be more effective than building trust and involving his family in a productive way, and that this warrants throwing the law books away, but even this position is not supported by the evidence we’ve seen so far. All you have are mindless fear, Jack Bauer fanboy derangement, and knee-jerk authoritarianism.
February 5th, 2010 at 1:32 pm
I’m so old, I remember when respecting others’ human rights wasn’t considered a sign of weakness.
February 5th, 2010 at 1:33 pm
I guess I watched too many WWII movies as a kid. If this guy is an enemy combatant can’t he refuse to give anythng but his name, rank and serial number? It’s illegal to mistreat him whether he’s a criminal suspect OR a prisoner of war, isn’t it?
February 5th, 2010 at 1:34 pm
Hi, I’m the United States Constitution. You may remember me from such famous quotations as “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
February 5th, 2010 at 1:38 pm
Which leads me at least to the inevitable conclusion that what they really want is control of the unlimited power of the state, to do with as they see fit.
Ding ding ding. Though I’d finesse it somewhat: they want the unlimited power of the state to be used in accordance with their whims, but they generally don’t want their hands dirty.
People who genuinely believe that reading someone his rights will cause him to “clam up” have absolutely no experience in state or federal criminal practice.
They do, however, have season passes to Law & Order and 24 on their DVRs, which befits them as fantasists.
February 5th, 2010 at 1:41 pm
Most acts of terrorism are, in fact, civil crimes. Al Qaeda is, among other things, a criminal organization.
Odd, then, that the US Congress declared war on al Qaeda after 9/11. Under your reasoning, we ought to just have sent the NYPD over to Afghanistan to arrest OBL.
Nevertheless, since the overwhelming majority of Americans – including virtually of the US Congress – think that we were, in fact, at war with al Qaeda, your reasoning is superfluous.
February 5th, 2010 at 1:43 pm
I guess I watched too many WWII movies as a kid. If this guy is an enemy combatant can’t he refuse to give anythng but his name, rank and serial number?
That only applies to prisoners of war, who are lawful combatants. Abdulmutallab is an unlawful combatant, making those rules inapplicable.
February 5th, 2010 at 1:46 pm
“Odd, then, that the US Congress declared war on al Qaeda after 9/11. Under your reasoning, we ought to just have sent the NYPD over to Afghanistan to arrest OBL.”
Just proving once again that you can’t read at a fifth grade level and can’t reason your way out of a brown paper bag.
February 5th, 2010 at 1:59 pm
Pause for a moment, Al, and consider whether this is the kind of work you’d comfortably bill for.
If so, consider speeding up your journey to the ground floor at the end of the day by taking the window exit.
February 5th, 2010 at 2:14 pm
Yes this is why I think Greenwald’s emphasis on fear is misplaced. I don’t think the conservatives are afraid, necessarily. They are angry. They are vengeful.
February 5th, 2010 at 2:16 pm
I would no more bill for this entertainment than for watching footy.
That said, I still don’t understand LFP’s point. He seems to think that we should be combatting terrorism with law enforcement, so I brought that to its logical conclusion – sending the NYPD after OBL in Afghanistan. Now, it appears that LFP thinks that the military is a glorified SWAT team, only doing the jobs that are a bit too complicated for a normal beat cop. But that doesn’t change the fact that LFP apparently doesn’t see a qualitative difference between law enforcement and military.
February 5th, 2010 at 2:24 pm
LaFollette Progressive (@48):
Your condescension is outweighed by your stupidity. Al Qaeda isn’t like the Mafia. Al Qaeda is at war with the U.S. Since the 2001 AUMF, the U.S. is now at war with Al Qaeda.
We are discussing an active Al Qaeda member, an enemy combatant, not a common criminal. It doesn’t matter what he did, where he did it, or how he was subdued. The simple fact is he isn’t a common criminal but a foreign enemy combatant within a group at war with the U.S. That pretty much wrecks any rights guaranteed by the Bill of Rights; which means that Holder gave him the right to remain silent. Kind of like when the majority on the Supreme Court gave terrorists other rights they aren’t supposed to have.
Actually, it’s anyone who supports giving enemy combatants rights guaranteed to the American people and treating them like common criminals in the civil courts who are the ones supporting authoritarianism. That would be you.
February 5th, 2010 at 2:36 pm
Somebody buy Steve a dictionary.
February 5th, 2010 at 2:42 pm
Al, SteveAR and everyone else that agrees with their position might be well served by looking at the US criminal code Title 18 Part I Chapter 113B, specifically subsection 2332b, but all of chapter 113B would be good to read. Only when they have read all of it should they come back and comment.
February 5th, 2010 at 2:42 pm
Al and SteveAR:
If we arrest a dude trying to cause damage (lighting an underwear bomb on an airplane, plotting to attack a military base, whatever) how do you know whether he is a regular criminal or an “enemy combatant”? Al Qaeda is a pretty amorphous group; to my knowledge, they don’t have a definitive membership status, ID numbers, etc. If Undie Bomber simply says he’s in Al Qaeda, does that make him an enemy combatant? What if Al Qaeda denies it? What if Al Qaeda credibly denies it? What if it were a born-and-raised US citizen, with no ties to any terrorist groups, who tries on his own volition to blow up an airplane? What if it’s a US citizen who lived abroad in Yemen, and then tries to blow up a shopping mall on US soil? What if Michael Jackson’s doctor, preferring the secrecy of a military tribunal, announces “I did it all for Bin Laden!”
I know you probably don’t have time to answer all of those permutations, but my point is, I never understand how conservatives, placing themselves hypothetically in the place of law-enforcement officials, can assert with so much confidence that so-and-so is an enemy combatant and isn’t entitled to the normal protections given to US criminal defendants. These distinctions are hardly obvious. P
February 5th, 2010 at 2:46 pm
Just proving once again that you can’t read at a fifth grade level and can’t reason your way out of a brown paper bag.
Unfair to Al! Unlike SteveAR, Thomas, and most of the intertube’s right-wing commentators, Al isn’t functionally retarded. He’s a lying sociopath.
February 5th, 2010 at 2:46 pm
Sorry my errant “P” at the end of my post #62 was an error, and not an attempt to stick out my virtual tongue at you. :>
February 5th, 2010 at 2:53 pm
I’m effing sick of this “the Constitution is not a suicide pact”
WTF is a sucide pact ? How is AQ or one airplane crash or ten going to kill the country ? How can due-process for any individual at any time kill the country ? A terrorist astronomer who knows an asteroid is coming but won’t say so?
The captured leader of Russia who wont call of his 7,000 nukes ?
August 6th, 2001: a date which will live in infamy.
By the way, what if AQ gets some snazzy uniforms and their operatives wear them on their suicide missions ? Name Rank and Serial number then ?
February 5th, 2010 at 3:09 pm
[...] Matt Yglesias: [...]
February 5th, 2010 at 3:19 pm
RBIII wrote:
“The UndieBomber was treated as a common criminal and Mirandized. He is not a common criminal, he’s an enemy combatant and as such does not have the same rights an alleged criminal would have.
THAT’S the issue. Nice try, though. Really.”
——–
Totally agree, RBIII!!!
Obama & Friends fell into right into the trap that Bush & Co. laid for him when they gave the Shoebomber HIS Miranda rights. Bush had powers, he could see the future, he knew that terrorists would move from shoes to undies!
Stoopid Obama. Ha! Bush set you up for that one, idjit!
February 5th, 2010 at 3:30 pm
nbt:
Sure they are. Being a suicide bomber is the typical MO of Islamist terrorists, especially those in Al Qaeda. Being a captured failed suicide bomber is clue enough to hold this guy, interrogate him, gather any other intelligence about the guy, and all before charging him or giving him rights. Considering the suicide bombers of the other major Islamist terrorist groups (Hamas and Hezbollah in particular) aren’t stupid enough to attack the U.S. directly knowing the U.S. would consider it an act of war and retaliate (at least one would think so), it’s a good bet the captured terrorist is Al Qaeda, regardless of how amorphous it is. Considering the government knew early on (based on the warnings from the terrorist’s father), it didn’t take long to think this wasn’t some lone-wolf attack, like the McVeigh terrorism.
According to the reports I’ve seen, this guy was interrogated for less than an hour. Before he was given the right to remain silent some 12 hours after being captured, I believe the government had already figured out this guy was Al Qaeda and an unlawful enemy combatant. But Holder gave the Undiebomber his rights anyway. Wrongly.
February 5th, 2010 at 3:39 pm
The Miranda rights are absolutley necessary to make sure CITIZENS of the United States are not railroaded and abused. It is The U.S. Constitution meant to protect U.S. citizens. A simple look at his passport should have shown, well in most cases, what his nationality was.
February 5th, 2010 at 3:43 pm
Before he was given the right to remain silent some 12 hours after being captured, I believe the government had already figured out this guy was Al Qaeda and an unlawful enemy combatant. But Holder gave the Undiebomber his rights anyway.
Just a quick stop in, but want to point out the perversion of language above. Rights aren’t something you’re “given” by law enforcement authorities; you don’t have rights or not have rights based on the charitable whims of the police or federal agency whose custody you’re in. Rights are something you have, period.
February 5th, 2010 at 3:50 pm
Stefan: you’re, well, stoopid. Read your bill of rights; it explicitly says “person”, not “citizen”. Now, if you want to advocate making him an unperson, you go right ahead, but it basically makes you a neo-stalinist if you do.
US right wingers are the biggest pearl-clutching bedwetters I’ve ever seen so far in this life… those guys are amazing. Amazing entertainment, that is; they should do a reality show about them.
February 5th, 2010 at 3:51 pm
“the people” meant U.S. citizens. That’s where we wingnuts are coming from in the discussion.
February 5th, 2010 at 3:57 pm
It occurs to me that the people who claim that a terrorist is somehow a “special” criminal are the same people who claim that “hate crimes” are NOT “special crimes.”
Cake, once eaten, is somehow still cake? (That is, they want their Kate and Edith, too). Hypocrites, all of them.
Ed
February 5th, 2010 at 4:00 pm
Fascinating here ‘behind the lines’. Please explain ‘pearl-clutching’
February 5th, 2010 at 4:06 pm
SteveAR,
You literally erased all my questions from my post #62 with the interestingly fuzzy cases. Then in your post #68 you say that “it didn’t take long to think this wasn’t some lone-wolf attack” and “the government had already figured out this guy was Al Qaeda”. How did we “figure out” this? I thought that’s why we have trials, to figure stuff out as it pertains to criminal suspects. In fact, I’m not even sure this Nigerian kid is “Al Qaeda”. Some guys in Yemen calling themselves Al Qaeda gave him the explosives, but does that count? What if some white American guys in Wisconsin calling themselves Al Qaeda gave him the explosives?
What about the Cho kid at Virginia Tech or the two kids at Columbine High School : they had murder-suicide intentions and they targeted innocents for mass slaughter. If we had caught them before they killed themselves, should we have declared them enemy combatants on the grounds that “being a suicide bomber is the typical MO of Islamist terrorists”? Cho was not a US citizen. Does that make a difference?
You may think all my hypotheticals are silly, but if you want to grant the President of the United States the unreviewable power to determine which mischief-makers are and are not entitled to ordinary criminal rights, I would like a MUCH clearer articulation of the standard. And I would want it encoded into law by the legislature.
February 5th, 2010 at 4:09 pm
Stefan:
According to what, the Constitution? The Constitution is a compact between the American people and the government of the United States. The Constitution also provides the power the government has over the American people, and guarantees that power by the government will not violate the rights we have as Americans. Neither it nor any of the amendments have been ratified in any country outside of the United States. Nowhere does the Constitution guarantee anything, including rights, to foreign enemies at war with the United States. What every lefty who says the Undiebomber has rights guaranteed by the Constitution while he is waging war against the United States are confusing the Constitution with a suicide pact.
February 5th, 2010 at 4:09 pm
One thing is clear: It is absolutely impossible for him to have a fair jury trial at this point because of all of the pronouncements on his certain guilt, beginning with the pres (a lawyer? tisk )
February 5th, 2010 at 4:15 pm
Neither it nor any of the amendments have been ratified in any country outside of the United States.
I apologize. I was not aware that Detroit, Michigan, where Abdulmuttulab was arrested and questioned, was outside the United States. But since you can see Canada from there, I guess it practically is. Certainly in that case the Constitution does not apply in Michigan.
February 5th, 2010 at 4:18 pm
Since the US Constitution applies to US citizens, it’s not required to mirandize non-citizens. Yet it’s something commonly done when a non-citizen commits a criminal activity. So the issue here is, SHOULD we mirandize non-citizens who have committed a terrorist act? To complicate things, there can be a fine line between what is considered a terrorist act and a criminal one. Maybe it doesn’t make sense to mirandize the pantybomber, but wouldn’t we do so if it were some lunatic non-terrorist American who tried the same thing?
I think the real problem is that we need a clearly defined process for such situations. I’m sure someone with more experience in this area than me (and all of you) will eventually tackle this problem.
February 5th, 2010 at 4:19 pm
I agree with ntb (75). It’s natural for us as a nation to want to deny terrorists any rights. After all, they don’t recognize any standards beyond their own nihlist visions. The problem is, there is literally no way to do that without also empowering someone beyond the reach of the constitution. Better to error on the side of transparency than create an opportunity for tyranny.
February 5th, 2010 at 4:23 pm
Since the US Constitution applies to US citizens, it’s not required to mirandize non-citizens.
This is completely false. It’s common misimpression. The US Constitution’s due process protections regarding criminal procedures apply to all persons held in custody by law enforcement, not just citizens. No distinction is made between citizens and non-citizens; the only standard is whether you are present in the US (or in territory controlled by the US).
February 5th, 2010 at 4:24 pm
You bed-wetting coward.
He’s a common crook, different from the unibomber or Tim McVeigh only in his lack of competence.
The lesson of 9/11 wasn’t about the superiority of a “national security” approach to terrorism; properly, terrorism shouldn’t be a national security issue. Your odds of dying in a terrorist attack are less than your odds of dying in a lightning strike. For all meaningful purposes, they can not harm you. They do not have anywhere near the capability. The only existential threat it poses is YOU overreacting and throwing away our bedrock principles in your panic.
Stop. Empowering. The Terrorists.
February 5th, 2010 at 4:25 pm
nbt:
We have criminal trials to convict people of committing crimes, whether it be in civilian courts, courts martial, or tribunals. Mirandizing the Undiebomber was done way too early since there was probably far too much information out there that the government should be getting from him. Granted, if the guy was shown to pretty much be doing this on his own, then I could understand having this guy read his rights. But considering we’re in a war, and enemy combatants use suicide bombing as a tactic, as the Undiebomber did, then telling the terrorist he can keep quiet is really, really dumb. You can see my point, can’t you? If the government were to try him later on, fine; then Mirandize him and try or, better yet, put him up before a tribunal (he was trying to commit an illegal act of war).
Those others you mentioned are like McVeigh; loners or a couple of guys out to commit mass murder; that isn’t an act of war in and of itself. So McVeigh, especially being an American, and the others you mentioned are guaranteed all the rights as every other American (although the ones you mentioned killed themselves at the scene, so it really is kind of besides the point).
February 5th, 2010 at 4:28 pm
The Fourteenth Amendment to the US Constitution:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Notice how the language switches from “citizens” to “persons” in the second sentence? It makes a clear distinction between rights that “citizens” have and those that all “persons”, not just citizens, have.
Once someone makes it into the US, they are subject to our laws. If they are subject to our laws, then it also follows that they are subject to the protections those laws confer (with certain exceptions, mainly limited to rights due citizens re voting, etc. and re immigration status). All “persons”, not just citizens, have due process and equal protection rights.
February 5th, 2010 at 4:34 pm
If we arrest a dude trying to cause damage (lighting an underwear bomb on an airplane, plotting to attack a military base, whatever) how do you know whether he is a regular criminal or an “enemy combatant”? Al Qaeda is a pretty amorphous group; to my knowledge, they don’t have a definitive membership status, ID numbers, etc. If Undie Bomber simply says he’s in Al Qaeda, does that make him an enemy combatant? What if Al Qaeda denies it? What if Al Qaeda credibly denies it?
nbt,
This is why we have combatant status tribunals. If we believe he is in al Qaeda, we have to show the tribunal why, and the tribunal would decide if the are entitled to hold him as an enemy combatant.
February 5th, 2010 at 4:35 pm
SteveAR #83:
Those others you mentioned are like McVeigh; loners or a couple of guys out to commit mass murder; that isn’t an act of war in and of itself. So McVeigh, especially being an American, and the others you mentioned are guaranteed all the rights as every other American.
Well, I agree with you on that. I guess my concern is how to draw a distinction between (i) McVeigh who’s just a “loner” and (ii) Undie Bomber who in your view is part of an organization that’s at war with the USA. You think it’s an easy call. I think the distinction is often fuzzy and extremely difficult.
I also agree that the government/prosecution does not need to “Mirandize” the Undie Bomber suspect, even if we treat him as an ordinary criminal. We could interrogate the suspect (short of torture) to get useful intel, as long as we scrupulously exclude any resulting info from his criminal trial.
February 5th, 2010 at 4:41 pm
“No amount of rhetoric can change a crime into a social or political cause. Kidnapping is a violent crime and those who engage in this kind of terrorism, whatever their alleged motives, are not romantic revolutionaries; they are common, sordid, vicious criminals and should be treated accordingly.” – Governor Ronald Reagan, Speech, May 2, 1974.
alright, conservatives, you must choose. I know he was speaking specifically in this instance about kidnapping, but the concept remains. He is a criminal. He should be treated as one. Elevating him to a lofty status as “enemy combatant,” or “holy warrior” merely emboldens his cause and turns him into more of a martyr. Ronald Reagan understood this. Why can’t you?
February 5th, 2010 at 4:42 pm
To Stefan, and to underline what #71 said: please read the ENTIRE first section of the Fourteenth Amendment. You may disbelieve that the Founders intended that all people, no matter their citizenship, should be treated the same before the law (anyway it doesn’t matter what they thought); you may believe that the word “persons” in the Constitution means Americans. But the change of noun, within that section, is stark and its meaning unmistakeable: the equal rights/due process guarantee does, indeed, apply to all persons under any State’s jurisdiction, not exclusively citizens.
February 5th, 2010 at 4:45 pm
Timothy Mcveigh had ties (tenuous, but still ties) to various ultra-right wing racist organizations. Some of these organizations advocate the violent overthrow of the government. Therefore, Timothy Mcveigh is an enemy combatant. Doesn’t logic just blow your mind?
February 5th, 2010 at 4:49 pm
Al #85
his is why we have combatant status tribunals. If we believe he is in al Qaeda, we have to show the tribunal why, and the tribunal would decide if the are entitled to hold him as an enemy combatant.
Thank you for an intelligent response. Those tribunals are a good start. I would note, though, that the tribunals are not open to public scrutiny or further review. There are very strong incentives for the authorities to “fudge” to keep those suspects away from the regular criminal system. (Thanks to a 2008 SCOTUS ruling, the alleged enemy combatants may have a right of judicial review, but I’m not clear on that.)
February 5th, 2010 at 4:50 pm
Since the 2001 AUMF, the U.S. is now at war with Al Qaeda.
The 2001 AUMF authorizes the President to use all necessary and appropriate force against Al Qaeda.
I realize that the distinction between giving the executive branch the authority to commit “all necessary and appropriate force” against al Qaeda, and decreeing that “any suspected act of terrorism by al Qaeda immediately renders the suspect an enemy combatant with no rights whatsoever” is a tricky one for someone with authoritarian political leanings to understand. Fortunately, the AUMF is an actual legal text, not a blank slate upon which right-wing thugs can inscribe all their authoritarian fantasies, so you will lose that argument in any court in the land.
But what I don’t understand is this: the suspect was read his Miranda rights, per standard procedure. Even under the most aggressive right-wing reading of the AUMF, these are rights that someone arrested for a federal crime automatically has unless and until someone in a position of authority decides it is necessary and appropriate to consider someone an enemy combatant. It’s not as if the Miranda text is a magic spell that confers a state of non-cooperation upon a terrorist. If you believe the President has the right to designate this guy as an enemy combatant, then the suspect could be informed that he no longer has those rights if necessary.
So on one side, we have White House and FBI officials insisting that the guy is providing useful intel and the law enforcement scenario is the best way to ensure he is permanently incarcerated. And on the other side, we have a bunch of wingnuts whining that this guy should be removed from the criminal justice system on general principle despite having no credible argument that it actually benefits our military operations against Al Qaeda to do so. You have absolutely no idea whether we’d get more actionable intel out of him in a coercive interrogation, and any claim you could possibly make to that effect is bullshit.
February 5th, 2010 at 4:57 pm
Stefan (@81):
Considering what the lefty Democrats who run the city have done to it, you might be right. In any case, it has nothing to do with where he was arrested because he is part of a group at war with us. Even the Nazi spies captured in the US during WWII (Ex Parte Quirin) didn’t have the rights you think the Undiebomber has.
Anthony Damiani:
That is exactly what you are doing. Stop. Empowering. The Terrorists.
I notice neither the national security or the law enforcement principles used to stop terrorism isn’t used to stop lightning strikes from killing people. Your analogy is stupid.
February 5th, 2010 at 4:58 pm
To Stefan, and to underline what #71 said: please read the ENTIRE first section of the Fourteenth Amendment. You may disbelieve that the Founders intended that all people, no matter their citizenship, should be treated the same before the law (anyway it doesn’t matter what they thought); you may believe that the word “persons” in the Constitution means Americans. But the change of noun, within that section, is stark and its meaning unmistakeable: the equal rights/due process guarantee does, indeed, apply to all persons under any State’s jurisdiction, not exclusively citizens.
Why to me? That’s exactly what I said.
February 5th, 2010 at 5:04 pm
Stevear,
First of all, Michigan is a state. And you are a moron. Second of all, the empowering of the terrorists is done by making them out to be scary boogie-men who are going to kill us all in our sleep – who could strike anywhere, do anything, attack anyone…. whooooooo….. The lightning strike analogy is particularly valid. You are, statistically speaking, not going to be attacked by a terrorist. Bed-wetters is a thoroughly appropriate term for people like you. Let the perfectly adequate criminal justice system deal with these idiots, and stop raising them to the status of “holy warriors” and “enemy combatants” and people will stop being so, well… terrified.
February 5th, 2010 at 5:05 pm
Certainly in that case the Constitution does not apply in Michigan.
Considering what the lefty Democrats who run the city have done to it,
*sigh* Michigan is not a city.
February 5th, 2010 at 5:12 pm
(Thanks to a 2008 SCOTUS ruling, the alleged enemy combatants may have a right of judicial review, but I’m not clear on that.)
I think that is right – under Boumedienne, all persons held at Gitmo designated as enemy combatants have habeas rights; presumably that would have been the case with Abdulmutallab too. As far as I could tell, if the Obama Administration had designated him an enemy combatant, they could have continued to interrogate him without a lawyer for a certain amount of time. However, he would be represented at the combatant status tribunal, and would have counsel if he applied for habeas relief.
February 5th, 2010 at 5:39 pm
Orion (@87):
Puh-lease. These aren’t “enemy combatants”, but unlawful enemy combatants. Meaning they engage in illegal acts of war. The only ones elevating them are those who think they are ordinary criminals instead of war criminals. They should be treated like John Andre; caught, tried, convicted, executed. By tribunal.
Orion (@89):
Really? Name them. Name the leaders, where they live, what they’ve done, the crimes they’ve committed, especially after the McVeigh bombing. Or STFU.
LaFollette Progressive (@91):
When lefties use words like “authoritarianism”, “racism”, or “torture”, the lack of standards you have for the defining those words completely undermine their actual meaning. So forget trying to pull that crap on me, since by the actual definition of authoritarianism, it’s something you believe in. But I’ll move on.
If you look at how this played out, he was arrested, interrogated, then read (given) his right to shut up some 12 hours later. That is the sticking point; why Mirandize him until all useful information could be pulled out of him? After all, the point isn’t to use this questioning to use in a trial, but to prevent further terrorist attacks. Allowing him to clam up before this is done, while the country is at war, is just stupid. Or worse, malfeasance on the part of Holder.
I know. But in this case, it’s dumb luck that we’re getting anything out of him at all. The Undiebomber’s family had already warned the government about him heading to the U.S., and came over of their own free will to help him cooperate with the U.S. government. That is an aberration. The vast majority of terrorists’ families are either in denial about the terrorism or support it. So it wasn’t anything more than luck that the U.S. is getting anything out of this guy, which is probably no good anyway by now, weeks after his arrest. Plus, why would you offer an illegal enemy combatant a plea deal? The guy is going to be locked up until the war is over anyway since nobody in the government will let the Undiebomber live in the U.S.; I doubt the Nigerian government wants him back either.
And you have no credible claim we’re getting anything worthwhile out of him now. I don’t believe Holder one little bit; the AG isn’t trustworthy.
February 5th, 2010 at 5:45 pm
Orion:
Really? According to whom? Come on, give me the studies that say so. I don’t mean the meanderings of lefties like Greenwald or even President Obama and his cronies; I mean real, honest-to-goodness studies.
February 5th, 2010 at 6:12 pm
We don’t really know any details about Abdulmutallab’s interrogation and the timing of the giving of Miranda warnings. As someone who has been both a prosecutor and a defense lawyer, I can say that I have never met an FBI agent or any kind of law enforcement official who was just itching to give Miranda warnings. Generally speaking, FBI agents and federal prosecutors are not ACLU types. It could well be that Abdulmutallab was clamming up on his own, and the FBI agents felt that it could actually be helpful to get him processed quickly in order to get a lawyer assigned to him. As Yglesias points out in another post, law enforcement officials frequently find that a smart defense lawyer is their best ally in getting information out of a criminal defendant. Any seasoned defense lawyer would know immediately that Abdulmutallab does not have a defensible case, that he is facing extremely severe penalties, and that virtually the only chance he has to help himself is to give information to the government. Based on what I have been reading, that appears to be what is happening. Sounds like a better outcome than shipping him off to Guantanamo so he could be waterboarded 87 times and turned into a vegetable and a rallying point for anti-Americanism around the world.
February 5th, 2010 at 6:21 pm
@ 99;
This article seems to have information on the interrogation and the Miranda warnings..
“At least four U.S. agencies were involved in a decision to read Umar Farouk Abdulmutallab his rights, sources say, after it was clear that he had stopped sharing information.”
February 5th, 2010 at 6:34 pm
100:
That would seem to be consistent with what I said, namely, that a decision was made based on the fact that Abdulmutallab was clamming up and that the best way to get him to continue talking was to get him a lawyer. Procedurally, it would have been better to have military interrogators involved in the process, but it seems very unlikely that the result would have been any different. The Republican willingness to demonize the rule of law is really getting pretty scary. I get the feeling that the Republicans are essentially saying that getting information from this guy was less important than making the point that legal procedures do not apply to “terrorists.” What a bunch of jackasses.
February 5th, 2010 at 6:46 pm
What’s with the word “ordinary”? What the hell is “ordinary” crime? I’ve never heard of anyone being charged with an “ordinary” crime. Some hacks start saying it, idiots repeat it, then suddenly it’s supposed to be understood that there is a category of crimes called “ordinary”. Tell it to the judge.
February 5th, 2010 at 7:47 pm
democraticcore (@101):
Right. Terrorist’s father tells State Dept. about son’s terrorist leanings. State does nothing. Nobody does anything. Terrorist gets on an airplane, caught trying to blow it up. Napolitano says system worked. Then says it didn’t. Obama says the terrorist worked alone. Then says he’s part of Al Qaeda. Mueller says the decision to Mirandize terrorist made on the ground without his knowledge. Holder finally admits he made the decision, but didn’t tell Mueller for over a month. Blair says terrorist should have been turned over to HIG. Then he says HIG wasn’t active yet, after 5 months, one month after terrorist was arrested. DoJ says we got intelligence after 50-minute interrogation, but not after terrorist was Mirandized. Now says he’s talking (and only because worried family was flown in).
But it’s Republicans and conservatives who are the jackasses. Only in liberal la-la-land.
February 5th, 2010 at 8:01 pm
SteveAR is completely wrong.
The portion of the 14th amendment in question is the following:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“
“Persons” and “citizens” have entirely different meanings in the Constitution. There are a handful of instances in which the Constitution applies only to American citizens….when that is the case, the Constitution explicitly uses the word “citizens.” In all other instances, it simply restricts what the Government is permitted to do generally or uses the much broader term “persons” to describe who holds the rights it guarantees.
Now, if the actual reading of the Constitution isn’t enough for you, there are many court rulings that reaffirm this. For instance, a ruling in 1886 pertaining to a Chinese national, Yick Wo, held that “these provisions (in the 14th Amendment) are universal in their application, to all persons within the territorial jurisdiction (of the United States).” Most recently, the Padilla decision and the Rasul decision reaffirmed this precedent… that the 14th Amendment applies to ANYONE who’s liberty is taken away (RE: Arrested) within the jurisdiction of the US.
February 5th, 2010 at 8:05 pm
If you think I was cherrypicking, here is the full text of what the court said in 1886 with regards to the 14th amendment:
“The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. . . . The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.”
February 5th, 2010 at 9:01 pm
[...] conservatives, the Constitution is all optional, except for that part about the [...]
February 5th, 2010 at 9:45 pm
Stefan (@95):
Be generous! When I read Michigan, I assumed Michigan City, Indiana. And as we all know, Indiana is a country somewhere off the coast of Sri Lanka–and definitely not subject to US law.
SteveAR (@59):
Seriously this time. The “UndieBomber” was not given rights; he was informed of rights he already held by virtue of being in US custody. This has been explained above. These rights are not inherent to “American people,” as your post assumes, but to persons under American jurisdiction. This applies to non-Americans in the US, but not to US citizens outside the US, as the US Constitution has no jurisdiction. Again, this is explained above.
But my question: you assert that informing the “UndieBomber” of his rights while in the US supports authoritarianism. If this is so, who or what is the Authority behind the autoritarianism? The only match I can find is the US Constitution. Am I wrong?
February 6th, 2010 at 12:13 am
Gotta love SteveAR. Indefinite extrajudicial internment? Not authoritarian. Stripping certain classes of people of their right to a jury trial? Not authoritarian. Secret prisons where enemies of the state are waterboarded and placed in stress positions during coercive interrogations? Not authoritarian. Reading a criminal suspect his Miranda rights? totally authoritarian. Jonah Goldberg like wrote a book about this or something.
That’s just dadaist trolling.
February 6th, 2010 at 12:16 am
@47 “The Constitution is a compact between the American people and the government, the group that is supposed to protect the people from external enemies like Al Qaeda. It does not guarantee the rights of those foreigners who are actively at war with us.”
Is this the best way to think of this? Isn’t it more accurate that the constitution is an agreement between the people that established a government with restrictions on how it may operate? I.e., no restriction of free speech, no unreasonable search and seizure, certain actions only with due process and so on? If so, it doesn’t matter where the government is acting or on whom. There are things our agreement (constitution) does not allow our government to do. There’s no ability or need to provide full due process on a battlefield, but the runway in Detroit (after the guy is in custody) isn’t a battlefield.
February 6th, 2010 at 9:11 am
Jay C. Smith:
Au contraire. Johnnydigital brought up the 14th Amendment, which states that due process must be observed for anyone, including the Undiebomber. I disagree because if at all relevant, the 5th Amendment applies. Even if that is true, the procedures that constitute due process for potential enemy combatants while the U.S. is at war, which we are, are quite different than for a Timothy McVeigh terrorist. By law, it is up to the President (or relevant administration officials) to say whether someone is an enemy combatant who is a member of foreign power the U.S. is officially at war with (the 2001 AUMF, in this case). That means that the Undiebomber, even though captured in the U.S., can be held until such a determination is made. If that determination is made, and because the Undiebomber doesn’t fall into the description of an American as specified in Hamdi (Padilla doesn’t apply here), he can be held until hostilities cease between the U.S. and the powers it is at war with; even with Hamdi, a relevant review can still be conducted to hold an American as an enemy combatant. That’s it; that’s all that is necessary to satisfy due process. Had the Undiebomber been a lawful enemy combatant, a uniformed soldier, he wouldn’t even have habeas rights.
However, the Undiebomber was not only an enemy combatant, but an unlawful enemy combatant because he wasn’t a uniformed soldier and because he deliberately targeted civilians in violation of the laws of war. As soon as the Undiebomber strapped on a bomb to blow up an airplane, he became an enemy combatant; and because the U.S. is at war, that plane became a battlefield, just like Flight 93 was on 9/11. That means the U.S. can hold the Undiebomber until hostilities cease, or he is released due to a successful habeas petition he can file as a result of the wrongfully decided Boumediene. It also means the government can question the Undiebomber all the while he is in custody, without having to charge him with anything. If he is charged with violating the laws of war, and because he is not an American as defined by Hamdi, he can be sent to Gitmo and prosecuted in a tribunal as specified in the 2006 MCA, subject to the rules and regulations of those courts. That is the extent of the due process that must be observed for unlawful enemy combatants. Other than habeas rights given the Undiebomber, the terrorist has no rights guaranteed to an American under the 4th, 5th, 6th, or 14th Amendments while the U.S. is at war.
In fact, charging and trying the Undiebomber under the civilian criminal justice system, but especially trying KSM and the other 9/11 terrorists in the civilian courts, undermines the rights of every American. Any procedure producing the evidence necessary to convict these war criminals could potentially be used to convict Americans for shoplifting or any other crime. I mean, Obama said he wanted his administration to break away from what was done by the Bush administration, but left just about all of it in place. Now he wants to add on to it in the civilian courts, even though he says (without any justification) it won’t affect the rights of Americans. He just isn’t believable. Therefore, the authoritarianism that lefties like LaFollette Progressive falsely say conservatives support is actually being done by the leftist President in office. In answer to Jay C. Smith, this is why the Constitution is a compact between the people and its government, not some grandiose utopian manifesto of rights. Granted that in peacetime, a foreign person committing a crime is guaranteed rights, but clearly not all of them. But in wartime, a foreign unlawful enemy combatant belonging to a group the U.S. is at war with has none, except those given by the Supreme Court in Hamdan and Boumediene.
Thanks to Rasul, Hamdan, and Boumediene, the activist Justices on the Supreme Court gave unlawful enemy combatants like the Undiebomber terrorist rights no other such individual ever had before in the history of the world. Hamdan was especially egregious because it ruled the Geneva Conventions applied to these terrorists when, in fact, they don’t. Terrorists are covered under the 1977 Protocol I that was added on, which definitively means that these terrorists aren’t civilians as specified in Geneva Convention IV. However, the U.S. never signed or ratified Protocol I and it isn’t relevant to U.S. law. Therefore, since terrorists aren’t covered under either Geneva Conventions III or IV, and since Protocol I covering terrorists isn’t a part of U.S. law, Common Article 3 should never have applied and the original tribunals Bush established should have been left in place. And now thanks to Holder, the Undiebomber was given the right to remain silent.
February 6th, 2010 at 1:00 pm
Although, I personally am so far to the left that even the democrats appear to me to be “right-wing,” I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States (and in the other industrialized nations) on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People–an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom: http://pltcldscsn.blogspot.com/
February 6th, 2010 at 3:32 pm
[...] Matt Yglesias screeches about the conservative uproar over the Undiebomber unconstitutionally given rights by Attorney General Eric Holder, trying to say that the terrorist is the same type of criminal as any other that goes through the civilian criminal justice system. The problem is that he utterly refuses, like so many leftists, to consider that he is absolutely wrong. Yglesias falls into the pattern leftists like him indefinitely maintain, one that is explained extremely well by Charles Krauthammer. [...]