Once Tsarnaev was arrested, President Obama strongly suggested that he would eventually be tried in court, which presumably means he will at some point have a lawyer (something that Graham, along with John McCain and Liz Cheney, last night opposed). But the Obama DOJ also announced that they intended to question him "extensively" - their word - before reading him his Miranda rights, as Graham advocated in the second and third tweets quoted above. And the DOJ said they intend to question him not just about matters relating to immediate threats to the public safety - are there other bombs set to go off? is there an accomplice on the loose preparing to kill? - but also, again in their words, "to gain critical intelligence".
Graham's tweets quickly created a firestorm of outrage among various Democrats, progressives, liberals and the like. They insisted that such actions would be radical and menacing, a serious threat to core Constitutional protections. I certainly shared those sentiments: the general concept that long-standing rights should be eroded in the name of Terrorism is indeed odious, and the specific attempt to abridge core constitutional liberties on US soil under that banner is self-evidently dangerous.
But while I shared the reaction of these Democrats to Graham's decrees, it nonetheless really baffled me, as I quickly noted. This was true for several reasons.
First, the Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham's Miranda tweets yesterday. In May, 2010, the New York Times' Charlie Savage - under the headline "Holder Backs a Miranda Limit for Terror Suspects" - reported that "the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights." Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power, as reported back then by Salon's Justin Elliott ("Obama rolls back Miranda rights"), the Wall Street Journal ("Rights Are Curtailed for Terror Suspects"), the New York Times ("Delayed Miranda Warning Ordered for Terror Suspects"), and myself ("Miranda is Obama's latest victim").
In a great analysis last night denouncing the DOJ's decision to delay reading Tsarnaev his rights, Slate's Emily Bazelon details exactly what roll-back of Miranda was achieved by Obama. Specifically, the Obama DOJ exploited and radically expanded the very narrow "public safety" exception to Miranda, which was first created in 1984 by the more conservative Supreme Court justices in New York v. Quarles, over the vehement dissent of its liberal members (Brennan, Marshall and Stevens, along with O'Connor). The Quarles court held that where police officers took a very brief period to ask focused questions necessary to stop an imminent threat to public safety without first Mirandizing the suspect, the answers under those circumstances would be admissible (in Quarles, the police apprehended a rape suspect and simply asked where his gun was before reading him his rights, and the court held that the defendant's pre-Miranda answer - "over there" - was admissible).
The Court's liberals, led by Justice Thurgood Marshall, warned that this exception would dilute Miranda and ensure abuse. This exception, wrote Marshall, "condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations" and "endorse[s] the introduction of coerced self-incriminating statements in criminal prosecutions". Moreover, he wrote, the "public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary" and said the court's decision "cannot mask what a serious loss the administration of justice has incurred".
As Marshall noted, the police have always had the power to question a suspect about imminent threats without Mirandizing him; indeed, they are free to question suspects about anything without first reading them their Miranda rights. But pre-Miranda statements were not admissible, could not be used to prosecute the person. This new 1984 "public safety" exception to that long-standing rule, Marshall said, guts the Fifth Amendment's guarantee that one will not be compelled to incriminate oneself. As he put it: "were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties."
As controversial as this exception was from the start (and as hated as it was among traditional, actual liberals), it was at least narrowly confined. But the Obama DOJ in 2011 wildly expanded this exception for terrorism suspects. The Obama DOJ's Memorandum (issued in secret, of course, but then leaked) cited what it called "the magnitude and complexity of the threat often posed by terrorist organizations" in order to claim "a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case". It expressly went beyond the "public safety" exception established by the Supreme Court to arrogate unto itself the power to question suspects about other matters without reading them their rights (emphasis added):
"There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation."That is what Graham advocated regarding Miranda: that Tsarnaev be interrogated about intelligence matters without Mirandizing him, and that's exactly what Obama DOJ policy - two years ago - already approved. Worse, as Bazelon noted: "Who gets to make this determination? The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power." At the time, the ACLU made clear how menacing was the Obama DOJ's attempted roll-back of Miranda rights for terror suspects.
Although we do not yet know how long the Boston bombing suspect will be questioned pre-Miranda or what will be asked, Bazelon - citing the Obama DOJ's 2011 policy as well as last night's announcement - writes:
"And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to 'valuable and timely intelligence'. Couldn't that be just about anything about Tsarnaev's life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won't be a public uproar. Whatever the FBI learns will be secret: We won't know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people. . . ."So Democrats reacted with horror and outrage to Graham's suggestion that "the last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" But that's already Obama DOJ policy, enacted with little controversy. And last night's announcement makes clear that the Obama DOJ intends, as Bazelon says, to question him about a wide range of topics far beyond matters of imminent threats to public safety without first Mirandizing him.
But there's another reason why I found Democratic outrage over Graham's statements to be confounding. The theory on which Graham's arguments are based is one that the Obama administration has vigorously embraced with the full-throated endorsement of most of its supporters: namely, that the US is "at war", and that anyone who takes up arms against the country or tries to kill Americans is not entitled to basic rights - even if they're American citizens. As Graham told the Washington Post, his view that Tsarnaev is not entitled to these rights is grounded in his belief that the US is fighting a global war and those who fight in it against the US are "enemy combatants".
It is bizarre indeed to watch Democrats act as though Graham's theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this "entire-globe-is-a-battlefield" war paradigm - as supporters of Obama's assassination powers must do and have explicitly done - then it's impossible to scorn Graham's views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham's beliefs are grounded.
It's certainly possible to object to Graham's arguments on pragmatic grounds, by advocating that Tsarnaev should be eventually Mirandized and tried in a federal court because it will be more beneficial to the government if that is done. But for anyone who supports the general Obama "war on terror" approach or specifically his claimed power to target even US citizens for execution without charges, it's impossible to object to Graham's arguments on principled or theoretical grounds. Once you endorse the "whole-globe-is-a-battlefield" theory, then there's no principled way to exclude US soil. If (as supporters of Obama's terrorism policies must argue), the "battlefield" is anywhere an accused terrorist is found and they can be detained or killed without charges, then that necessarily includes terrorists on US soil (or, as Graham put it, using one of the creepiest slogans imaginable: "the homeland is the battlefield").
Recall, in fact, that the Democratic-led Senate enacted the 2011 NDAA, which was then signed into law by President Obama, that codified the power of indefinite detention even of US citizens on US soil accused of terrorism (that's what led a federal court to enjoin the law on the grounds of unconstitutionality). It is true that Obama said that, as a matter of policy, he would not exercise these powers against US citizens on US soil, but that's simply a pragmatic choice that can be changed at any time. The theory of the NDAA is the same theory as Graham yesterday invoked, which in turn is the same theory animating the Obama "war on terror": the US is "at war" with The Terrorists, and anyone who takes up arms against the US and tries to kill Americans are "combatants" who can be denied basic rights. Watching Democrats mock Graham, while supporting Obama's policies based on the same theory, is truly surreal.
Finally, consider how radically Obama's "war on terror" has altered political opinion. As noted, even the narrow "public safety" exception to Miranda was the work of mostly right-wing Supreme Court justices who long hated Miranda. For that reason, it was loathed by liberals, including Thurgood Marshall, who viewed it as a stealth attempt to destroy Miranda. Yet now, the Obama administration has radically expanded even that once-controversial exception by claiming the power to question suspects without Miranda warnings far beyond what even those conservative justices recognized (as the Obama DOJ put it: "There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary").
Now, the cheers for this erosion of Miranda are led not by right-wing Supreme Court justices such as William Rehnquist (who wrote the opinion in Quarles), but by MSNBC pundits like former Obama campaign media aide Joy Reid, who - immediately upon the DOJ's announcement - instantly became a newly minted Miranda expert in order to loudly defend the DOJ's actions. MSNBC's featured "terrorism expert" Roger Cressey - who, unbeknownst to MSNBC viewers, is actually an executive with the intelligence contractor Booz Allen - also praised the DOJ's decision not to Mirandize the accused bomber (if you want instant, reflexive support for the US government's police and military powers, MSNBC is the place to turn these days).
Leave aside how misleading and misinformed this defense is: the DOJ's policy, as documented, is to go well beyond that 1984 "public safety" exception and the DOJ clearly intends to do so here. It's just so telling how this doctrine, in the age of Obama, has been transformed from hated right-wing assault on Miranda rights to something liberals now celebrate and defend even in its warped and expanded version as embraced by the Obama DOJ. Just 30 years ago, Quarles was viewed as William Rehnquist's pernicious first blow against Miranda; now, it's heralded by MSNBC Democrats as good, just and necessary for our safety, even in its new extremist rendition. That's the process by which long-standing liberal views of basic civil liberties, as well core Constitutional guarantees, continue to be diluted under President Obama in the name of terrorism. Just compare the scathing denunciation of this Miranda exception by Marshall, Brennan and Stevens to the MSNBC cheers for it in its enlarged form.
Needless to say, Tsarnaev is probably the single most hated figure in America now. As a result, as Bazelon noted, not many people will care what is done to him, just like few people care what happens to the accused terrorists at Guantanamo, or Bagram, or in Yemen and Pakistan. But that's always how rights are abridged: by targeting the most marginalized group or most hated individual in the first instance, based on the expectation that nobody will object because of how marginalized or hated they are. Once those rights violations are acquiesced to in the first instance, then they become institutionalized forever, and there is no basis for objecting once they are applied to others, as they inevitably will be (in the case of the War on Terror powers: as they already are being applied to others). As Bazelon concludes:
"No one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It's to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will."Leave aside the fact that Dzhokhar Tsarnaev has been convicted of nothing and is thus entitled to a presumption of innocence. The reason to care what happens to him is because how he is treated creates precedent for what the US government is empowered to do, including to US citizens on US soil. When you cheer for the erosion of his rights, you're cheering for the erosion of your own.
The Jose Padilla precedent
It is true, as noted, that Obama's statement that Tsarnaev will eventually be tried in a court constitutes a rejection of the Graham/McCain/Cheney argument that he be held as an "enemy combatant" more or less indefinitely. It's strange to give credit to a political leader for being willing to charge someone with a crime and allow them a lawyer before imprisoning them, but in our political climate, that's how low the bar is set, because that outcome is far from certain. So those who say that Obama is not replicating Graham's entire advocated course of action are, at least to that extent, correct, provided that Tsarnaev is eventually charged and ends up in a civilian court.
But given how Graham's statements were treated like some sort of shocking aberration, it is worth noting that the US government previously did exactly what he advocated. In 2002, US citizen Jose Padilla was arrested on terrorism charges on US soil (at Chicago's O'Hare International Airport), and shortly before he was to be tried, the Bush administration declared him to be an "enemy combatant", transferred him to a military brig, and then imprisoned him (and tortured him) for the next 3 1/2 years without charges, a lawyer, or any contact with the outside world. That was the incident that most propelled me to start political writing, but it barely registered as a political controversy.
So as extremist as Graham's tweets may have seemed to some, it was already done in the US with little backlash. That demonstrates how easily and insidiously extremist rights assaults become normalized if they are not vehemently resisted in the first instance, regardless of one's views of the individual target.
Reader Comments
Mark Twain wrote about False Flags, No-Trials, Anonymous-“Testimony”, and Torture, in “A Connecticut Yankee in King Arthur's Court.” The tactic is immeasuably old and remains effective to control the sheeple:
CHAPTER XVIII - A ROYAL BANQUET [Snip]
=== Now that the queen was at ease in her mind once more, and measurably happy, her wine naturally began to assert itself again, and it got a little the start of her. I mean it set her music going--her silver bell of a tongue. Dear me, she was a master talker. [Snip] So she tinkled along and along, in the otherwise profound and ghostly hush of the sleeping castle, until by and by there came, as if from deep down under us, a far-away sound, as of a muffled shriek --with an expression of agony about it that made my flesh crawl. The queen stopped, and her eyes lighted with pleasure; she tilted her graceful head as a bird does when it listens. The sound bored its way up through the stillness again.
=== "What is it?" I said.
=== "It is truly a stubborn soul, and endureth long. It is many hours now."
=== "Endureth what?"
=== "The rack. Come--ye shall see a blithe sight. An (If) he yield not his secret now, ye shall see him torn asunder."
=== What a silky smooth hellion she was; and so composed and serene, when the cords all down my legs were hurting in sympathy with that man's pain. Conducted by mailed guards bearing flaring torches, we tramped along echoing corridors, and down stone stairways dank and dripping, and smelling of mould and ages of imprisoned night --a chill, uncanny journey and a long one, and not made the shorter or the cheerier by the sorceress's talk, which was about this sufferer and his crime. He had been accused by an anonymous informer, of having killed a stag in the royal preserves. I said:
=== "Anonymous testimony isn't just the right thing, your Highness. It were fairer to confront the accused with the accuser."
=== "I had not thought of that, it being but of small consequence. But an I would, I could not, for that the accuser came masked by night, and told the forester, and straightway got him hence again, and so the forester knoweth him not."
=== "Then is this Unknown the only person who saw the stag killed?"
=== "Marry, no man saw the killing, but this Unknown saw this hardy wretch near to the spot where the stag lay, and came with right loyal zeal and betrayed him to the forester."
=== "So the Unknown was near the dead stag, too? Isn't it just possible that he did the killing himself? His loyal zeal--in a mask--looks just a shade suspicious. But what is your highness's idea for racking the prisoner? Where is the profit?"
=== "He will not confess, else; and then were his soul lost. For his crime his life is forfeited by the law--and of a surety will I see that he payeth it!--but it were peril to my own soul to let him die unconfessed and unabsolved. Nay, I were a fool to fling me into hell for his accommodation."
=== "But, your Highness, suppose he has nothing to confess?"
=== "As to that, we shall see, anon. (If) I rack him to death and he confess not, it will peradventure show that he had indeed naught to confess--ye will grant that that is sooth? Then shall I not be damned for an unconfessed man that had naught to confess --wherefore, I shall be safe."
=== IT WAS THE STUBBORN UNREASONING OF THE TIME. IT WAS USELESS TO ARGUE WITH HER. ARGUMENTS HAVE NO CHANCE AGAINST PETRIFIED TRAINING; THEY WEAR IT AS LITTLE AS THE WAVES WEAR A CLIFF. AND HER TRAINING WAS EVERYBODY'S. THE BRIGHTEST INTELLECT IN THE LAND WOULD NOT HAVE BEEN ABLE TO SEE THAT HER POSITION WAS DEFECTIVE. (RC sez: Sound Familiar?)
=== As we entered the rack-cell I caught a picture that will not go from me; I wish it would. A native young giant of thirty or thereabouts lay stretched upon the frame on his back, with his wrists and ankles tied to ropes which led over windlasses at either end. There was no color in him; his features were contorted and set, and sweat-drops stood upon his forehead. A priest bent over him on each side; the executioner stood by; guards were on duty; smoking torches stood in sockets along the walls; in a corner crouched a poor young creature, her face drawn with anguish, a half-wild and hunted look in her eyes, and in her lap lay a little child asleep. Just as we stepped across the threshold the executioner gave his machine a slight turn, which wrung a cry from both the prisoner and the woman; but I shouted, and the executioner released the strain without waiting to see who spoke. I could not let this horror go on; it would have killed me to see it. I asked the queen to let me clear the place and speak to the prisoner privately; and when she was going to object I (insisted.); [Snip] (She then said) "Ye will do in all things as this lord shall command. It is The Boss."
=== It was certainly a good word to conjure with: you could see it by the squirming of these rats. The queen's guards fell into line, and she and they marched away, with their torch-bearers, and woke the echoes of the cavernous tunnels with the measured beat of their retreating footfalls. I had the prisoner taken from the rack and placed upon his bed, and medicaments applied to his hurts, and wine given him to drink. The woman crept near and looked on, eagerly, lovingly, but timorously,--like one who fears a repulse; indeed, she tried furtively to touch the man's forehead, and jumped back, the picture of fright, when I turned unconsciously toward her. It was pitiful to see.
=== "Lord," I said, "stroke him, lass, if you want to. Do anything you're a mind to; don't mind me."
=== Why, her eyes were as grateful as an animal's, when you do it a kindness that it understands. The baby was out of her way and she had her cheek against the man's in a minute and her hands fondling his hair, and her happy tears running down. The man revived and caressed his wife with his eyes, which was all he could do. [Snip] I said:
=== "Now, my friend, tell me your side of this matter; I know the other side."
=== The man moved his head in sign of refusal. But the woman looked pleased--as it seemed to me--pleased with my suggestion [Snip] (and) broke in, eagerly: "Ah, fair my lord, do thou persuade him! Thou canst (if) thou wilt. Ah, he suffereth so; and it is for me--for _me_! And how can I bear it? I would I might see him die--a sweet, swift death; oh, my Hugo, I cannot bear this one!"
=== And she fell to sobbing and grovelling about my feet, and still imploring. Imploring what? The man's death? I could not quite get the bearings of the thing. But Hugo interrupted her and said:
=== "Peace! Ye wit not what ye ask. Shall I starve whom I love, to win a gentle death? I wend thou knewest me better." [Snip]
=== "I see, I see.... And yet I believe I don't quite see, after all. You stood the torture and refused to confess; which shows plain enough to even the dullest understanding that you had nothing to confess--" [Snip]
CHAPTER XVIII - IN THE QUEEN'S DUNGEONS
=== Well, I arranged all that; and I had the man sent to his home. I had a great desire to rack the executioner; not because he was a good, painstaking and paingiving official,--for surely it was not to his discredit that he performed his functions well--but to pay him back for wantonly cuffing and otherwise distressing that young woman. (RC sez: Sound Familiar?) The priests told me about this, and were generously hot to have him punished. Something of this disagreeable sort was turning up every now and then. I mean, episodes that showed that not all priests were frauds and self-seekers, but that many, even the great majority, of these that were down on the ground among the common people, were sincere and right-hearted, and devoted to the alleviation of human troubles and sufferings. Well, it was a thing which could not be helped, so I seldom fretted about it, and never many minutes at a time; it has never been my way to bother much about things which you can't cure. But I did not like it, for it was just the sort of thing to keep people reconciled to an Established Church. [Snip.] CONCENTRATION OF POWER IN A POLITICAL MACHINE IS BAD; AND AN ESTABLISHED CHURCH IS ONLY A POLITICAL MACHINE; IT WAS INVENTED FOR THAT; IT IS NURSED, CRADLED, PRESERVED FOR THAT; IT IS AN ENEMY TO HUMAN LIBERTY, AND DOES NO GOOD WHICH IT COULD NOT BETTER DO IN A SPLIT-UP AND SCATTERED
CONDITION. THAT WASN'T LAW; IT WASN'T GOSPEL: IT WAS ONLY AN OPINION--MY OPINION, AND I WAS ONLY A MAN, ONE MAN: SO IT WASN'T WORTH ANY MORE THAN THE POPE'S--OR ANY LESS, FOR THAT MATTER.
=== Well, I couldn't rack the executioner, neither would I overlook the just complaint of the priests. The man must be punished somehow or other, so I degraded him from his office and made him leader of the band--the new one that was to be started. He begged hard, and said he couldn't play--a plausible excuse, but too thin; there wasn't a musician in the country that could.
RC sez: The more things change . . .
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R.C.