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May 04, 2010

Comments

Rarely is the question asked: is our Senators learnin'.

I don't know what's worse: that hacks like McCain and King get up and spout this bilious drivel in the first place: or that our "MSM" takes their nonsense at face value as a serious subject for discussion, and wastes airtime/ink/pixels repeating it.

"miranda rights" is a wingnut dogwhistle. whatever it means in the real world is different from what it signifies to "conservatives".

Well, McCain is from Arizona.

Where they pass laws (which he supports) which essentially say that brown people have no rights.

Ernesto Miranda was of Middle Eastern descent.

Well, now she is.

In a decade or two, she'll be Chinese.

If her name was McMiranda, she'd be a Scotsman or an Irishman or one of those hard-drinking, poetry spewing, barfighters.

Typo: you meant "nettlesome," not "nettesome.

I was joking today with a friend that irony is dying because the Republicans are determined to destroy their greatest weakness by coopting it entirely. It's like feminists or queer theorists reclaiming slurs. Now the Republicans adopt parody positions, but for realsies, before anyone can even make the mocking comparison.

The hilarious thing is that these buffoons apparently believe that an American citizen's Constitutional rights not to self-incriminate, to be represented by an attorney, to a jury trial, to not be held without charge, etc. only exist if the police tell them about them. Which was the whole damned point of Miranda in the first place -- that defendants already have these rights, and can't claim ignorance of them in order to avoid charges or culpability.

Thanks Julian. Fixed.

Why McCain thinks that Shahzad should not have been Mirandized is a complete mystery to me.

Could he somehow think that if we keep the guy in the dark about his rights, that the guy won't still have those rights? I have no idea.

The Miranda warning isn't a blessing. If anything, it's protection for law enforcement against the defense that the accused doesn't/didn't know what his rights are.

At least, that's how it should work, IMO. But I've been called naive, before.

Slart and Phil, these are excellent points.

Although, shudder, I think the logical extension from McCain and King is that those rights should be contingent as well.

Under the "but still" rationale. Otherwise, their argument is so utterly inane as to become meaningless.

The distinction here being that a citizen is entitled to full constitutional protection, but a non-citizen who enters the country for the purpose of committing a terrorist act, is not. As a matter of constitutional principle, is there a distinction to be made between a terrorist and a dope smuggler? If the latter gets a Miranda and 4th amendment search and seizure protection, why not the former? On the one hand, I don't want a non-resident terrorist to avoid prosecution because a proper warrant wasn't obtained prior to intervening and preventing an attack. OTOH, who wants the Bill of Rights repealed whenever one of the suspects isn't a citizen or legal resident? I don't see any easy answers at the moment.

The distinction here being that a citizen is entitled to full constitutional protection, but a non-citizen who enters the country for the purpose of committing a terrorist act, is not.

McTex: The suspect is a citizen.

The distinction here being that a citizen is entitled to full constitutional protection, but a non-citizen who enters the country for the purpose of committing a terrorist act, is not.
He isn't. The non-citizen has no constitutional right to be in the united states and may be deported without recourse to any due process.

However, since the civilian courts still operate, those are the venues in which he will be tried and punished. The easy answer is the presumption of competence on the part of our legal system to deal with criminals.

On the one hand, I don't want a non-resident terrorist to avoid prosecution because a proper warrant wasn't obtained prior to intervening and preventing an attack.

Adding: I don't think this really goes to the Miranda warning, and the rights highlighted thereby.

He isn't. The non-citizen has no constitutional right to be in the united states and may be deported without recourse to any due process.

Well, at a minimum they've got the right to a proceeding to determine whether or not they are a citizen or are in the country legally, I would think. Otherwise, how can you tell that they have no due process right?
Also, the US has obligations under the Convention Relating to the Status of Refugees (and asylum-related laws), both of which are relevant here.

Eric, first, I am aware that the suspect is a US citizen. Second, I am unaware of any constitutional principle by which one has a 5th amendment right, but no rights under the 4th, 6th or 8th amendments. In other words, a terrorist who happens to be a US citizen gets the full range of rights under the Constitution solely because he/she is one lucky piece of crap. If we don't extend the full range of rights to a terrorist who is not a US citizen, then do we likewise deny any person illegally in the country some or all rights under the Constitution. And, if you try a terrorist in civilian courts, but he/she is not afforded any constitutional protections, then by what standard and under what authority is the terrorist being tried?

Asked differently, does the crime determine what rights an illegal entrant has, or do our rights extend to anyone who crosses our border, regardless of their intent or accomplishment?

Why McCain thinks that Shahzad should not have been Mirandized is a complete mystery to me.

The only plausible worry about giving the suspect a Miranda warning is that it might discourage him from ratting out his co-conspirators. That might be a reasonable worry if a suspect was caught very quickly after an attack and the police were worried that there might be a follow up. But it seems like a minor consideration given that there have been a couple of days without any sign of further attacks. It seems much more plausible that it's nothing but another excuse to criticize the Obama administration.

The Miranda issue on both sides (as it applies to this case) strikes me as a big red herring.

Miranda warnings are essentially about confessions. The police don't have a right to induce a confession outside of certain parameters. We set up these parameters (including through the Constitution) because we know that from time to time police officers use inappropriate means to extract confessions. (Which is why I think it would be great policy to tape all police interrogations).

The right isn't to the warning per se, but to avoid self-incrimination. The warning is part of how we vindicate the right--if you don't get the warning, you throw out the confession and any evidence that you get from the confession.

In a terrorism case where you have an unexploded bomb, and lots of physical and money links to the particular culprit, you don't need a confession and you don't need evidence from an interrogation to convict this person. This case doesn't need a confession. Miranda warnings one way or another have very little or nothing to do with this arrest and likely eventual conviction.

If the FBI was worried that he was a member of a group that was going to conduct other attacks, wanted to avoid Miranda, taped the interrogation so you could prove you didn't use evidence that you wouldn't have had access to but for the interrogation, try to find out all about his training/contacts for a further investigation against other people, and forgoes using such evidence in HIS trial, you are probably on sketchy but not obviously unconstitutional territory.

I can at least sort of see the argument for that. (Though I have no idea if that has anything to do with what is going on in McCain's head. Who can tell?)

If we don't extend the full range of rights to a terrorist who is not a US citizen, then do we likewise deny any person illegally in the country some or all rights under the Constitution.

I'm not sure what this question is getting at, or how it pertains to King/McCain - if that was the intention.

And, if you try a terrorist in civilian courts, but he/she is not afforded any constitutional protections, then by what standard and under what authority is the terrorist being tried?

Well, they get Constitutional protections if they are tried in civilian court. Heck, they get most or all of them if they are tried in a military tribunal.

In general, non-citizens on US soil get Constitutional protections.

Asked differently, does the crime determine what rights an illegal entrant has, or do our rights extend to anyone who crosses our border, regardless of their intent or accomplishment?

The tricky part there is that you are talking about the rights of the "accused" being determined by the crime they are "accused" of. Which is kind of assuming their guilt, and then determining what type of trial they get (and other rights due the accused) to determine...their guilt.

Sebastian, the question McCain raises, and which seems to have traction, is whether Shahzad had the right be Mirandized, regardless of whether doing so would have any effect. The answer, because he is a citizen, is "sure, he has that and a bunch of other rights too." What I can't get my head around is whether and to what extent Shahzad would have any rights if he weren't a citizen and what those rights might be.

Eric, it's a no-brainer that citizens have the full range of constitutional rights, terrorist, dope smuggler, pedophile, whatever. Commenters here and elsewhere distinguish between the Underwear Bomber and Shahzad--one being entitled to a Miranda, the other not--on the basis that Shahzad is a citizen and the UB is not. If that's a valid distinction--it certainly isn't irrational--then why would any non-citizen illegally in the country be entitled to any rights whatsoever, unless we say, somewhat arbitrarily, that terrorist suspects have no rights but mere alleged dope smugglers or child pornographers do? The focus is presently on Miranda, but as I've tried to ask above, by what principle do we dole out this or that right? Seems to me they come in a package.

"Miranda warning" is a right wing dogwhistle for something, but I really don't know what.

Very generally, citizens have roughly 3 classes of constitutional rights that noncitizens do not:

1. The right to vote
2. The right to hold elected office
3. The right to reside in the United States

Noncitizens do not possess the first two and may be granted the privilege of the third.

The Fifth Amendment applies equally to citizens, noncitizen legal residents, noncitizen visitors (tourists), and illegal immigrants. The case law on this is pretty clear.

Damn. For the first time ever, I agree with Sebastian and McTexas in a thread.

@JustMe
"Miranda warning" is a right wing dogwhistle for something, but I really don't know what.

History Lesson (I was there)
Its a relic of the Saint Ronny days in the 70's and early 80's. There was a lot of crime, especially in older cities, and mostly especially New York and Chicago.

One of the regular righty campaign memes was that the Libruls wuz "coddling criminals" and "soft on crime." What that meant was letting suspects and defendants, you know, have their constitutional rights. Miranda, principally, but also bad or warrantless searches, physical abuse, like that.

Turns out it worked, in a lot of places. Scary how often fear works, isn't it?
And it was no coincidence that the righties were almost all white, while the "coddled" criminals, of course, were almost all dark.

Which it why it was Onion-style irony of the highest level when convicted felon Ollie North got off on a technicality, and crowed that he was "vindicated."

The Supreme Court held in Miranda that the suspect's rights apply whether he was told about them or not. The only reason that the police now routinely read their Miranda rights to people who arrested is to make sure that the prosecution can then use any statements that they make in court.

So there appear to be only two reasons to advocate not reading someone their rights:
1) you want to make sure that any attempt to prosecute them will be handicapped, or
2) you figure that they will be subject to eternal preventative detention without charge anyway, so why bother.

In McCain's case, do you suppose the first is what he was trying for...? ;-)

@efgoldman,

Great point on Ollie North! That has been long forgotten.....

Eric, it's a no-brainer that citizens have the full range of constitutional rights, terrorist, dope smuggler, pedophile, whatever.

Unless you're referring only to suspects here, I'm pretty sure that, in fact, all of those people have all kinds of rights abrogated. The right to own a firearm, the right to leave the state (or even change addresses) without informing law enforcement, etc.

So there appear to be only two reasons to advocate not reading someone their rights: 1) you want to make sure that any attempt to prosecute them will be handicapped, or 2) you figure that they will be subject to eternal preventative detention without charge anyway, so why bother.

or:

3) You don't need any of his statements to prosecute, and you don't anticipate needing any of his statements to prosecute someone else, but you do want him to talk for...

PROFIT?

Someone else is going to have to fill in the blank, there, because I can't think of why we'd want a confession that wasn't on record, lacking a reason for not wanting it on record.

But I think it's probably best for McCain et al to explain themselves in this regard.

The Fifth Amendment applies equally to citizens, noncitizen legal residents, noncitizen visitors (tourists), and illegal immigrants.

Aside from case law, I'd think that certain rights actually are inalienable, and don't attach to citizenship. I can remember when I didn't think that, though, so feel free to ridicule me for inconsistency.

The word "citizen" is not used in any of the first ten amendments. The words used are "people" and "person".

I'm sure those either had, at the time the Bill of Rights was written, or have since acquired, a fairly specific meaning. Any ConLaw folks who'd like to weigh in, I'd be interested in hearing your thoughts.

Eric, it's a no-brainer that citizens have the full range of constitutional rights

Apparently, it is not.


@Whammer

I didn't forget. I hated that sumbitch from the first time he testified.

Joe Lieberman wants to deport the “Times Square Bomber”, who is a naturalized American citizen. Great idea, Joe! And while we're at it, let’s also deport naturalized American citizen and media terrorist Rupert Murdoch, whose unrelenting attacks on American society don’t always fizzle.


The Fifth Amendment applies equally to citizens, noncitizen legal residents, noncitizen visitors (tourists), and illegal immigrants. The case law on this is pretty clear.

And iirc, this is the only way to reasonably read these clauses based on original intent. Thinking otherwise is the sort of Citizens United 'originalism' that is afaict one of the most flexible set of interpretive principles in the legal profession.
[To be clear, this is not a general damnation of CU, even if I disagree with it. It's a damnation to those who espouse some variety of strict interpretation, and attempt to argue with a straight face that CU fits original intent somehow. Im looking at you, Justice Scalia].

Aside from case law, I'd think that certain rights actually are inalienable, and don't attach to citizenship.

Another funny thing: too many times I've had the same person go on about natural, inalienable rights & how the Constitution merely recognized those rights, it didn't create them- but then in the next conversation they're willing to attempt to parse the Constitution for the purpose of alienating those very inalienable rights from various (other) groups of people.
[Tying back into current events, witness the enthusiasm for "may I see your papers plz" among certain conservatives- as long as such an odious request is not made of white people.]

Ugh (if I can say that).

I believe we have gone round and round with respect to the citizens vs. non-citizens and constitutional rights here many times before.

As elm, russell, and Slarti note, in varying ways, above, the constitution (a) sometimes refers to people or the people; (b) sometimes refers to persons; (c) sometimes refers to citizens; and (d) sometimes refers to none of the above, instead stating things like "Congress shall make no law..."

So there is no doubt a distinction is to be made between the rights of citizens and non-citizens under the Constitution, but, how so? As russell notes, the bill of rights and its penumbras and emanations applies to all persons, not just citizens. Thus, one would think that POTUS could not kidnap an innocent Canadian citizen off of U.S. soil and ship him off to be tortured without due process of law. Or, indeed, summarily execute the Canadian because, well, he was lookin' shifty.

In any event, my question for those people who say that non-U.S. citizens have no constitutional rights (which I think I've stolen from CharleyCarp in a somewhat different context) is that, "So, you're allowed to make them your slaves then? How much are they fetching these days? And do you pay tax at the capital gains or ordinary income tax rate?"

@ Sebastian: I don't think you can convict someone based upon evidence obtained by violating someone else's constitutional rights, but I may be mistaken about that. For example, the US tortures person A who states that he and person B robbed bank X and killed the teller. Seems hard to say that such a statement is admissible against person B but not person A.

Joe Lieberman wants to deport the “Times Square Bomber”, who is a naturalized American citizen.

Yay, let's send him back to Pakistan!!

That way we can give up custody of him, lose any meaningful control over any criminal process brought against him, and quite possibly lose access to him for purposes of gathering intelligence!!

It's like a trifecta of stupid.

"I don't think you can convict someone based upon evidence obtained by violating someone else's constitutional rights, but I may be mistaken about that. For example, the US tortures person A who states that he and person B robbed bank X and killed the teller. Seems hard to say that such a statement is admissible against person B but not person A."

Your first statement is dead wrong. And I know because I got in the craziest discussion with my Evidence professor many years ago where I was frankly shocked at the number of hypotheticals I could come with where his answer was "clearly admissible" and "not even a hard question". It was one of those growing up moments where you find out that your view on how the world works is totally wrong.

For example: Let's say that the police stop a guy just because he is black. They search him for no reason whatsoever. They confiscate his iphone just to piss him off. On it they find a video recording of someone else committing a crime.

1. Was the stop a violation of the 4th amendment? Yes.

2. Was the search a violation of the 4th amendment? Yes.

3. Is the recording admissible against him? No.

4. Is the recording admissible against the third party? Absolutely.

Would statements from a torture victim be admissible? Probably not, but on reliability grounds, not on 4th amendment violation grounds.

But that wouldn't be the point anyway. The point (in a non-Mirandized interrogation) would be for him to give leads to third parties so that you would know who to investigate, organize a pretextual search (some minor traffic violation or something) or long term surveillance that you would hope could lead to probable cause.

(Please note that I'm explaining NOT excusing/defending). I have VERY mixed feelings about this kind of tactic. Especially because it is used in situations that are a lot loss crucial than terrorism investigations.

McKinney: In other words, a terrorist who happens to be a US citizen gets the full range of rights under the Constitution solely because he/she is one lucky piece of crap.

And that attitude, folks, multipled up a few million, is why US soldiers are ordered to torture prisoners and the US is running two, some, or more concentration camps for prisoners held illegally. Because being accused of terrorism is enough to justify criminal behavior.

Because folks like McKinneyTexas think people like me (you know, the other six billion people in the world) deserve no rights at all once accused by the US government of... well anything.

(Sebastian: Your first statement is dead wrong. And I know because I got in the craziest discussion with my Evidence professor many years ago where I was frankly shocked at the number of hypotheticals I could come with where his answer was "clearly admissible" and "not even a hard question".

*nods* Yeah. Evidence obtained by torture is inadmissable in any sane judiciary system not because it's illegally obtained but because it's very likely to be wrong.)

Jes, I think in this case you are unfair to McKinneyTexas. If you look further down the thread, you'll find that it is a question about consistency, not an endorsement.

If you look further down the thread, you'll find that it is a question about consistency, not an endorsement.

I think that when McKinney argues that a terrorist suspect who is a US citizen is a "lucky piece of crap" that they're getting access to basic legal rights, this is an endorsement of treating non-US citizens as, in fact, the US government has and is treating them when they are accused of terrorism.

It would be unfair to Sebastian to lump conservatives like him in with conservatives like McKinneyTexas, but...

It is not merely an intellectual question that McKinney is raising. It is a real world question: the US has treated - is treating non-US citizens accused of terrorism as if they had no rights, not even those guaranteed to anyone, anywhere, by international laws and treaties to which the US is a signatory. True, it would then be consistent to deprive brown-skinned US citizens of their rights too - racially consistent, you understand, not consistent in terms of any legal or judiciary system - but it makes no sense.

Except that even with all of Obama's faults, well, at least he's not McCain.

the US has treated - is treating non-US citizens accused of terrorism as if they had no rights, not even those guaranteed to anyone, anywhere, by international laws and treaties to which the US is a signatory.

I'm not sure McKinney deserves the blame for any of this, but I also have to agree that any discussion of these issues at the theoretical level have to acknowledge and account for the fact that we've spent a lot of the last 10 years not just torturing, but torturing the crap out of, lots of people. And the stuff that was just too grisly for our taste, we outsourced.

Some guy set up a bomb in Times Square. They did the legwork, and they caught him. He's a US citizen, he was apprehended in this country, he presented no immediate danger to anyone (any more). They read him his rights, he's in custody, and he's not going anywhere.

The cops will talk to this guy, the intel guys will talk to him, and they'll get his story. They won't have to beat it out of him, they'll get him to talk. And they will learn what he has to tell. Because it's what they do, and they're good at it, and because once the guy figures out his game is over he'll start talking. That's what happens.

That's the way it's going to work, and that's the way it's supposed to work.

I am constantly, and I do mean constantly, amazed at how eager folks in this country are to give up any and every basic protection under the Bill of Rights as soon as the words "terror" or "national security" are invoked. "War on drugs" should probably be added to that list.

If you don't have the rights when the chips are down, you don't have them at all. And if the other guy doesn't have them, then you don't have them either.

Are there hypothetical situations where that might expose us to some incrementally greater risk? I suppose there are. But what do folks think the risks are of making Constitutional protections "suggestions" rather than guarantees?

If you only have them when there is no risk or cost involved, you don't have them at all.

Nobody needs an umbrella on a sunny day.

Jes, go back and reread Hartmut. And then, reread my comment. I did not say terrorist suspect. I said terrorist. One is suspected, the other is established. And the point I was making is whether one particular piece of crap--a terrorist--who happens to be a US citizen gets the same constitutional protection as a non US citizen terrorist and then, if the non citizen terrorist gets less rights, then where does that leave your ordinary, run of the mill illegally-in-the-country criminal?

The question has been answered by others: pretty much anyone gets the full range of rights accorded to "persons" or "people" as used in the Constitution, but not rights secured to "citizens".

Which raises another question: should an exception be carved out for non-citizens caught in the act of preparing to commit or committing a terrorist act, at least regarding (1) the 4th amendment, (2) the right to counsel during interrogation (not to be confused with the right to counsel at trial and in court or the right to confront the evidence against the suspect) and (3) the right to remain silent (not to be confused with the right to be free of coerced confessions)?

Sometimes, Jes, your own self-righteousness clouds your judgment.

Which raises another question: should an exception be carved out for non-citizens caught in the act of preparing to commit or committing a terrorist act, at least regarding (1) the 4th amendment, (2) the right to counsel during interrogation (not to be confused with the right to counsel at trial and in court or the right to confront the evidence against the suspect) and (3) the right to remain silent (not to be confused with the right to be free of coerced confessions)?

There is a public safety exception to Miranda FWIW. If there is a clear and present danger, then there can be interrogations, and the fruits of those interrogations admissible, without Miranda.

should an exception be carved out
No, but I get the impression that it would make you feel better if it were.

Miranda exceptions.

There are similiar exceptions for protections against unreasonable search and seizure, etc., for national security and/or terrorism cases, especially involving non-citizens or situations where one party is not physically in the US.

I don't think any Constitutional guarantees apply for non-citizens who are not physically in the US.

"It's like a trifecta of stupid."

Russell wins the thread.
But still...

I don't think any Constitutional guarantees apply for non-citizens who are not physically in the US.

Fine, as long as the US respects the laws and rights of the place where the non-citizen is physically located. Unfortunately the US has a tendency to not give a damn about other people's laws and customs while demanding respect for their citizens and their US rights everywhere (cf. the famous half-joke* from WW1 that, if a US citizen decides to take a stroll on a battlefield, the battle would have to stop for the time in order not to hurt the US citizen).

*half-joke because that was more or less the official US position at the time, although the mock came iirc from Britain.

Russell: I'm not sure McKinney deserves the blame for any of this

True.

McKinney: I did not say terrorist suspect. I said terrorist. One is suspected, the other is established.

*shrug* Given that the US government has spent the last ten years steadily demolishing that distinction by kidnapping, torturing, and imprisoning terrorist suspects, gladly supported by so many Americans who referred to those suspects - found guilty by accusation - without qualification as terrorists, I think you're being a little too self-righteous to cry me down for it.

That said: I admit that I am currently emotionally and intellectually entangled in the UK election tomorrow, when we may rid ourselves of the government that got us into the Iraq war only to land ourselves with a government that would have supported the Iraq war faster, harder, and with bells on. It's entirely possible, under those circumstances, that I've misjudged what you were trying to say, so I think I ought to assume I did, and apologise.

Sorry, McKinney. I'll be back.

MckinneyTexas:

"I did not say terrorist suspect. I said terrorist. One is suspected, the other is established. And the point I was making is whether one particular piece of crap--a terrorist--who happens to be a US citizen gets the same constitutional protection as a non US citizen terrorist and then, if the non citizen terrorist gets less rights, then where does that leave your ordinary, run of the mill illegally-in-the-country criminal?"

IANAL, but I think our justice system grants a presumption of innocence to defendants. Therefore, someone can be a "terrorist" according to colloquial use of the word, but they are an "alleged terrorist" in the eyes of the law until they receive a conviction. It is misleading to say that someone can be an "established" terrorist without the benefit of the process which establishes that they are a terrorist. The process we used to determine who is and is not a terrorist is called "trial." Right now, McTx, it sounds like you're saying that people the government "knows" are terrorists should be stripped of their rights to x, y, and z before conviction, because the government "knows" they're guilty. The problem with that idea is that gives the government power to decree people guilty without review. No evidence presented to a court, no witnesses testifying. This is not a new proposal, but do you have new arguments to support it?

Philosophical question: If the same person argues vigorously that rights from the Second Amendment cannot be limited in any way (let alone ignored), and then argues with equal vigor that the rights from the Fifth Amendment can be freely and totally ignored whenever it is convenient, what does that suggest? That he is too stupid to count as high as 5, perhaps? Just speculating....

Sebastian, the question McCain raises, and which seems to have traction, is whether Shahzad had the right be Mirandized, regardless of whether doing so would have any effect. The answer, because he is a citizen, is "sure, he has that and a bunch of other rights too."

Pal of IRA terrorists Peter King has already answered that: "But still ..."

Joe Lieberman wants to deport the "Times Square Bomber", who is a naturalized American citizen.

More specifically, he wants to strip him of his citizenship. I suspect that the next step he has in mind isn't actually deportation. Though it's funny how this cedes McKinneyTexas' argument that all the things Holy Joe wants done to this guy would be prevented by his citizenship. I suppose this is progress of a sort, since

He's a US citizen, he was apprehended in this country, he presented no immediate danger to anyone (any more).

also describes Jose Padilla, and the US threw him in a military brig and tortured his mind away anyway.

Julian--no, you misread me. I was simply expressing my opinion that an established terrorist is a piece of crap. Nothing more than that. What the government 'knows' about someone--a suspected terrorist, dope smuggler, whatever--may be entirely valid in one case and total BS in another. In either event, I want a substantively fair, due process-oriented tribunal making the determination.

Jes--no problems here. Sorry you're stressed. Hope it clears up.

I admit that I am currently emotionally and intellectually entangled in the UK election tomorrow, when we may rid ourselves of the government that got us into the Iraq war only to land ourselves with a government that would have supported the Iraq war faster, harder, and with bells on.

I heard a few person-on-the-street interviews on BBC News Hour a few mornings ago regarding the upcoming elections. One woman was going to vote Conservative for the first time in her life because "something had to change." So out of the frying pan and into the fire for you, I suppose, Jes. I hope it won't last too long and there won't be too much damage done when it's over.

(I don't want to hear any baloney about the Hopey-Changey thing from anyone, so save it.)

McKinneyTexas, I was and still am confused because "one particular piece of crap--a terrorist--who happens to be a US citizen"getting "constitutional rights" is vague. Which constitutional rights? The right to bear arms? If he's a convicted terrorist, then he doesn't get that one. He won't get the right to vote either, since he's a felon. This is a post-trial convicted terrorist, so I'm not sure which constitutional protections you were discussing. If you were talking about constitutional rights to attorney, freedom from self-incrimination, and so on, those are rights that are relevant during or before trial. What hypo were you alluding to?

Rep. Peter King is all tough on terrorism now that Obama is President. But here is what he said after Bush froze in the classroom on 9/11:

“…for all he knew there could have been 15 to 20 other attacks going on. He could have been targeted there in Florida.”

Yeah, no need to move your butt in that case.

Ron Schalow – author of “Bullshit Artist: The 9/11 Leadership Myth”

Julian--in the context of Eric's post, i.e. whether a terrorist should or should not be Mirandized and whether, in turn, the right to be Mirandized turns on US citizenship, it seems obvious to me that the 'constitutional rights' I was referring to are those associated with the apprehension and prosecution of a criminal suspect. As for when the constitutional rights of an accused terrorist kick in, citizenship, the locus of the crime and the locus of the arrest all bear on that question. A US citizen apprehended in the US gets the full boat. Whether this is the case (as a matter of law, not my sense of what the law should be) for a US citizen apprehended in, for example, an Al Qaeda training camp after a brisk fire fight, I just don't know. As for non-citizens, I think others have shown that the locus of the crime and/or arrest drive the result.

It's entirely possible, under those circumstances, that I've misjudged what you were trying to say, so I think I ought to assume I did, and apologise.

Well done, Jesurgislac.

I realize that I might be in over my head and making you repeat a point that is obvious to you and everyone else, but I have questions:

"whether a terrorist should or should not be Mirandized"

I assume you mean an accused terrorist? A terrorist is someone who has been convicted of terrorism. Why would we Mirandize someone after conviction? Isn't that a bit late?

Also, what do you mean by "the right to be Mirandized?"

Wikipedia:
An elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of his/her "Miranda rights" and made a knowing, intelligent, and voluntary waiver of those rights.

Do you mean that suspects who don't have "the right to be Mirandized" can have incriminating statements they make used against them without either A) having been notified that they possess those rights or B) waiving those rights?

As Slarti said, the Miranda Warning is a tool for law enforcement officials. It is not a magic incantation that grants rights to suspects who didn't previously have them. Suspects possess Miranda rights whether they receive the warning or not. Suspects may waive their Miranda Rights once they are aware of those rights. Not reading a suspect her Miranda Warning makes it much more likely that incriminating statements she makes will be excluded. Can you explain, within this framework, why you think we should neglect to read any suspect her Miranda rights?

I understand that you are not sure which rights go to which suspects in which contexts: for a U.S. suspected apprehended in the U.S., you concede they possess all Miranda rights.

However, you said "terrorist" and "established terrorist."

"One is suspected, the other is established. And the point I was making is whether one particular piece of crap--a terrorist--who happens to be a US citizen gets the same constitutional protection"

Now you're saying:
"it seems obvious to me that the 'constitutional rights' I was referring to are those associated with the apprehension and prosecution of a criminal suspect."

Your hypo is a contradiction. An established terrorist has been convicted in a court of law. You are wondering if someone who has been convicted of terrorism has constitutional rights associated with apprehension and prosecution, i.e. Miranda rights (am I correct?) Since he has already been convicted, how can that matter? Unless you're referring to how this convicted terrorist will be treated when tried for future crimes. But I interpreted you to be referring to his constitutional rights in relation to the crime he's charged with; the crime that you have also already convicted him of, by deciding that he is an "established terrorist."

Sorry to run on, but it seems like you're contradicting yourself, assuming something you need to prove, or I am missing something.

I think the critical confusion between McKinneyTexas and everyone else -- and indeed, the simple question that is at the crux of, say, McCain or Lieberman's approach and everyone else is this:

"Why on Earth would someone's rights be different based on the specific crime they were charged with?"

Whether you're charged with terrorism or jaywalking, your rights should be static. Innocent until proven guilty, and all that jazz. That's not for the protection of criminals -- that's for the protection of everyone -- from sitting Senator to illegal alien.

The nature of the criminal charge would, of course, dictate things like "Under what sort of security should they be held" and "should they get bail" and even "Should we call in the Feds to help question him?" -- but what RIGHTS they have?

Of course, Holy Joe goes further and wants to strip citizenship from people the government accuses of a crime. Why he can't see the yawning pit he's standing on there is beyond me. Or perhaps he does, and is just posturing.

I learned today (from lawyersgundandmoneyblog) that Joe Lieberman went to Yale Law. Who'd've thunkit?

As Slarti said, the Miranda Warning is a tool for law enforcement officials

Any resemblance between anything I said and legal fact is random accident at best.

Julien--I concede what I think your point is: I could have been clearer in specifying "accused" vs. "convicted" terrorist, but I am not sure that distinction mattered to my original point since a convicted terrorist who is a US citizen retains the full range of rights available to any other convicted US citizen.

Morat20--you hit on both of my points. IF the right to a Miranda turns on citizenship in terrorism cases, then wouldn't that same distinction apply to all non-US citizens accused of all other types of crime? THAT was the question I was trying to raise, because many commenters and bloggers are using Shahzad's citizenship as the basis for which he gets the full ride constitutionally.

We probably disagree on the second point I was trying to raise. I am not sure at all that terrorist suspects who are not citizens should have the same right to silence and counsel after apprehension as citizens nor should the US have to apply for warrants to search the suspect's apartment, car, etc. If it were left up to me, i would statutorily carve out an exception. The reason is the nature of terrorism (or, more specifically, the jihadist specie we are mostly concerned with these days) being an ongoing campaign against the US and others. Suspected terrorists have actionable intelligence that may allow for future interdiction. There is no fundamental right to withhold that kind of information or to have a lawyer present to help someone withhold it.

Sorry, I thought I might get in trouble for using you as an authority. To be more specific, my understanding of the Miranda warning is as you stated upthread. It seems supported by the (totally unauthoritative) Wikipedia entry. My girlfriend is studying for her Admin final or I would pester her about Miranda rights. If someone has a cite contradicting that interpretation of Miranda, I would really appreciate it, but otherwise I am proposing that we let that interpretation stand for the purposes of this discussion.

The reason is the nature of terrorism (or, more specifically, the jihadist specie we are mostly concerned with these days) being an ongoing campaign against the US and others.

Why not militia-inspired terrorism?

Why not militia-inspired terrorism?

Well, first of all, i don't know what militia-inspired terrorism is unless you are referring to McVeigh who IIRC was too wacky to get into anyone's militia. Secondly, and more to the point, domestic terrorists are (1) US citizens or legal residents by definition and therefore fall outside the exception I am proposing and (2), since 9/11, have all been jihadist inspired with the exception of Scott Roeder (and, depending on how loosely you define terrorist, the lunatic who flew his plane into the IRS building in Austin more recently) and (3) anticipating someone would raise the militia issue I stated "mostly concerned with". Admittedly, I don't lose a lot of sleep worrying about the Billy Bob's of our hinterland mindlessly lashing out someday, but if that happens, i will be totally in favor of capital punishment for each and everyone of them found guilty of murder or treason.

McKinney, it's refreshing to see you come out and say it: you want noncitizens to have no rights.

If the nature of an accusation is sufficient to strip one of ones right to counsel and right to not be tortured, then those rights just don't exist.

The only part I don't understand is why you would limit that to non-citizens.

elm, it would be refreshing if you would read more carefully. I would limit non-citizens' rights only in the case of suspected terrorism and then only with respect to gathering intelligence, i.e. questioning and investigation during the apprehension phase. I specifically state that the the basic rights to a fair trial remain intact for everyone. I am happy to debate any issue on the merits, but mischaracterizing a position to score cheap and inaccurate points isn't debate.

since 9/11, have all been jihadist inspired with the exception of Scott Roeder (and, depending on how loosely you define terrorist, the lunatic who flew his plane into the IRS building in Austin more recently)

Just off of the top of my head: boobytraps laid for police in Hemet, CA. The Holocaust museum shooter. The murder of George Tiller. There have been a number of terrorist incidents at abortion clinics (firebombs, acid attacks,etc). And on the left, there have been acts of terrorism by animal-rights and environmental groups iirc.

Im sure there were plenty of others; domestic terror doesn't usually make huge national headlines.

And Im not sure what is 'loose' about calling it terrorism when people fly planes into buildings to make political statements. Was 9/11 terrorism?

I would limit non-citizens' rights only in the case of suspected terrorism and then only with respect to gathering intelligence, i.e. questioning and investigation during the apprehension phase

Um, nothing stops you from questioning a Mirandized subject. What rights do you want to limit here? The right not to have electrodes attached to your balls? The right not to be waterboarded?

What "rights" are you wanting to strip from non-citizens, based solely on an accusation, that you think are somehow preventing law enforcement from doing their job?

And that being said, what prevents the government from just accusing any non-citizen of 'terrorism' whenever they feel like it? You seem to place an AWFUL lot of trust in Big Brother there.

I am not sure at all that terrorist suspects who are not citizens should have the same right to and counsel after apprehension as citizens nor should the US have to apply for warrants to search the suspect's apartment, car, etc

An accusation or suspicion costs nothing and requires nothing. If accusation or suspicion are the standard then you *have* stripped those rights from all non-citizens. The police can trivially cook up an accusation whenever they feel like it. I do not trust the police to refrain from abusing such power, history shows they will abuse it.

If a person lacks the right to counsel and lacks the right to not incriminate himself, then he does not have the right to a fair trial. That's intrinsic in the U.S. notion of a fair trial. The history of fifth amendment law is full of coerced confessions and police abuse.

Suspected terrorists have actionable intelligence that may allow for future interdiction.

Maybe they do, maybe they don't.

I think I understand what you're after here, McKinney, but I'm not sure we get anything useful out of it that isn't already covered by any of a variety of existing public safety and "imminent danger" exceptions.

I could be wrong, but I think the necessary special cases have already been accounted for. And then some, to be honest.

The default position should be to respect the Constitutional protections, and not vice versa. "Suspected" cuts a pretty broad swath.

Well, first of all, i don't know what militia-inspired terrorism is

This was all over the news just a little over a month ago.

This incident is from last summer.

That's off the top of my head. You really don't have to look very far to find stuff like this.

"Suspected terrorists have actionable intelligence that may allow for future interdiction."

I don't eff with italics here, I've seen the damage they cause.

To emphasize what Russell already said:

I think you mean that suspected terrorists "may" have actionable intelligence. You have yet again made the mistake of assuming that all terror suspects are guilty or at least involved and therefore in possession of actionable intelligence. Some terror suspects are innocent. See Khaled El-Masri for an illustration of the risk of assuming that a suspect = a terrorist.

There is no current exception to Miranda that allows for an interrogation of Shahzad free of lawyers and free of Shahzad saying, in effect, "I'm through talking." Such a thing does not exist. Further, interrogating a suspected terrorist without a lawyer does not presume guilt. It does raise the risk--and the risk is real--of a coerced confession. You can mitigate that by requiring that all interrogation be on camera and available for review by a judge. The flip side is affording the full range of rights to Shahzad, or in a future case, to someone who is more than just an incompetent spear carrier and then deal with the fallout if a preventable event occurs. Good luck persuading congress and the courts that future suspects, post attack, should have the full range of rights. Some balancing is in order. A sustained terror campaign is a relatively new thing and doesn't graft well onto our pre-existing constitutional system. In my view, given the downside of a mass-casualty terrorist event, it is not a mistake to presume that someone like Shahzad has actionable intelligence and to make every reasonable effort to get that from him before giving him a lawyer to help him with his defense.

As for the militia thing, I was unaware of the border incident in Arizona. Those thugs merit the same level of investigation and prosecution as any terrorist group. The Michigan thing, based on what i've read, will likely not result in a prosecution because the evidence against those people, as weird as they are, falls way short of any kind of criminal conspiracy.

But if you want to look at the body count from domestic terrorism post 9-11, here it is:

John Allen Muhammad--10 dead
Abdul Hakim Muhammad--1 dead, 1 wounded
Nidal Malik Hassan--13 dead, 23 wounded

Arizona incident--1 dead, 1 wounded
George Tiller/Scott Roeder--1 dead
IRS Plane Attack in Austin--1 dead, 2 wounded (not counting Stack, the lunatic)

On balance, post 9-11, I'd say jihadist-inspired domestic terrorism poses the greater objective threat. Further, while the three non-jihadist incidents have a very loose association with a range of right wing positions on abortion, immigration and taxes, conflating these three disparate incidents as part of some unified movement borders on paranoia.

I think McKinney has this notion that terrorists are easily 100% identifiable, and that actionable intelligence is easily and reliably extractable from them.

Not sure what he has in mind that might fall under "easily and reliably" (my words, not his); whether simple verbal interrogation would suffice, or whether the person in question might have to lose a few toenails. Whatever the notion, it's nearly guaranteed to not correlate well to terrorist situations that occur in the real world.

You're not guaranteed to get more information by temporarily abridging the suspect's rights. You're perhaps not even more likely to gain more, and accurate, information that way.

The Declaration makes some nice-sounding statements regarding rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

These Men (which I read as "humans") that had inalienable rights: these were not Americans, because such did not exist yet. Furthermore, the word all kind of discounts the notion that the scribers of the Declaration were just talking about we colonials or even we future citizens of the united States of America.

I have been where you are, McKinney, or at least approximately. We'd like to get the truth so that (hopefully) fewer innocent lives will be spent. But this idea rests on the completely incorrect notion that you know who is guilty, and who knows something useful, and that given this knowledge, you can extract that information in a way that gives you complete confidence in its veracity.

All of that is pure fantasy, so what you wind up doing is violating the rights of people and not getting anything to show for it, or getting something that winds up being wrong in one way or another. On top of that, you get a government that now has permission to violate the rights of people they deem to be a threat.

Which might be you or I, someday.

Something to think about, anyway. If I've misread where you're coming from, here, my apologies. Maybe I'm just speaking more to who I was than who you are.

The set of "suspected" terrorists contains a bunch of innocent people. Look at the Guantanamo Bay prisoners: the United States imprisoned many innocent men and boys for years & years on the basis of suspicion and allegations.

If you grant the police extra powers every time they say the T-word, they're going to start saying it a whole lot more.

As a very practical example, consider the U.K.'s Prevention of Terrorism Act of 1974. According to the Home Office's statistics, between 1974 and 1990 the police detained 6932 people 86.3% of whom were innocent. A minority of the people detained were charged with criminal offenses (most not terrorism-related). A much larger number of people were stopped and searched at ports and airports, but the U.K. government didn't keep accurate records of that.

(Of course, in that case the burden fell principally on the ethnically Irish & Catholic minority.)

McKinney -

The plain fact is that, Miranda or not, Shahzad can, at any time, say "I'm through talking". The fact that he is read his Miranda rights doesn't change that, at all. Further, I'd be extremely surprised if hearing the Miranda warning was the first time he'd ever heard that he had a right to remain silent.

The Miranda issue only comes up at the time of arrest, and only applies to the use of any information gained in prosecuting the person being arrested. For other general intelligence gathering from suspected terrorists, law enforcement and intelligence can employ surveillance, wiretaps, physical search of their homes and offices, review of email and web activity, review of virtually any public transaction that left any form of public record at all. They can do this with a FISA warrant, which are virtually never denied, or a national security letter, which are warrants that the FBI writes for themselves.

If the police want talk to someone, they can talk to them. If the subject doesn't want to talk, there's nothing they can do to make them talk. Arrest or no arrest. The only thing Miranda does is makes a suspect's statements admissible in court as evidence in any prosecution of that person, specifically.

I don't understand what you think you're going to get out of an all-purpose "suspected terrorist" Miranda exclusion.

"In my view, given the downside of a mass-casualty terrorist event, it is not a mistake to presume that someone like Shahzad has actionable intelligence"

Someone like Shahzad? What is someone like Shahzad? Do you mean a "terrorist?" Because he's not a terrorist in the eyes of the U.S. criminal justice system. He's a criminal suspect, and he will shortly be a defendant.

You seem to be advocating that anyone the police/state "knows" is a terrorist can be interrogated and detained without an attorney. However, you also said:

"Further, interrogating a suspected terrorist without a lawyer does not presume guilt."

But that's a lie.

Scenario 1:

Suspect is taken into police custody. Police question suspect. He invokes his right to remain silent and asks for an attorney. An attorney is provided.

Scenario 2:

Suspect is taken into police custody. Police question suspect. He invokes his right to remain silent and asks for an attorney. The police refuse to get him a lawyer or release him. They continue to interrogate him. He asks why they are allowed to do this. They say, "Because we know you're a terrorist."

In what way does scenario 2 not presume guilt? The police / state have made a determination regarding his guilt that is being used to deprive the suspect of his rights to an attorney. This determination was not reached at trial, with the benefit of an attorney. It is made, without judicial review, by the police.

You earlier asked Elm to read you a little more carefully, but I think you need to write more carefully.

"Suspected terrorists have actionable intelligence that may allow for future interdiction."

"someone like Shahzad has actionable intelligence"

You keep assuming certainty where it does not exist.

Actually, if terrorists were even 60% easily identified, the problem would have long since ceased to exist. If actionable intelligence were easily obtainable, then even more so.

No, I think I have a reasonable handle of the problematic nature of identifying, apprehending, interrogating and prosecuting terrorists.

If it was easy, we would have already put an end to it.

The communication breakdown may lie in our respective views of what circumstances the people on the front lines have to deal with. My sense is that russell, slarti, elm, et al fear random arrests of innocent people followed by indefinite detention after which time anyone well might admit to anything just to be allowed to go home. Fair enough. Limits on who can be arrested, how long they can be held, what the 'probable cause' threshold ought to be for a detention of more than--pick a number, 48 hours(?)--are all in play.

The other side of the coin, however, involves people apprehended based on hard data obtained through surveillance, documents or computers captured from an established terrorist facility or other objectively reliable sources where the CIA or law enforcement or whoever really does have someone who is very likely, perhaps almost certainly, a very bad actor. This happens too. In fact, as many on this site have noted, one of the likely reasons the recent terror attempts have failed is the degraded capabilities of Al Qaeda and allied groups. THAT didn't happen playing by the usual law enforcement rules. We can't eliminate terrorist attacks, but the frequency and severity can be mitigated significantly. According every single person captured--for example, someone wounded in a fire fight and who clearly is one of the bad guys--the full range of rights simply makes no sense to me. This is particularly so for people, like Shahzad caught after having actually executed an attack (it was a fully executed attack, other than the bomb didn't go off) or the Underwear Guy. People caught red-handed, so to speak, do not have the right to remain silent.

And, no, I am not suggesting that a toe nail or two go missing in the process of interrogating them. Note that I expressly stipulated that the interrogation be on camera. Nor am I suggesting unfettered faith in the good faith of every person who arrests or interrogates these people. There would still be rules, but in this limited circumstance, the rules ought to be different.

John Allen Muhammad--10 dead....

On balance, post 9-11, I'd say jihadist-inspired domestic terrorism poses the greater objective threat.

The problem with your thinking here is that being 'jihadist-inspired' and being actually linked to jihadi groups in a way that provides actionable intel are two very different things. Afaict the only connection between the Beltway Sniper and actual ME jihadis is "admiration".
That is, if we justify treating jihadi-related terrorists differently than other terrorists based on body count and the need to prevent future attacks, it seems to me that the only attacks we should consider are the ones where jihadi-connected groups are involved. We could've completely penetrated every ME-connected terrorist group and still not stopped this guy.

And, I find your timeline too convenient; OKC was a serious attack. There have been other mass-casualty attacks planned by domestic, non-jihadi individuals in the US. Stopping them is very important, and non-jihadi bombs kill just as effectively.

Furthermore, you need to be careful that eg Muslim spree shooters (eg Nidal Hassan, Beltway Sniper) don't end up in the terrorist bucket while Christian spree shooters are merely categorized as 'mentally ill'. If you're going for a quantitative count, you need to use a reasonable standard to distinguish candidates.

Further, while the three non-jihadist incidents have a very loose association with a range of right wing positions on abortion, immigration and taxes, conflating these three disparate incidents as part of some unified movement borders on paranoia.

Nobody said that. You said that all of the terrorist incidents in the US since 9/11 had been jihadi-related, with one or two exceptions. And that's just not true. I even pointed out some left-wing domestic terrorists (again, iirc), so it's not like I was trying to paint a picture of solely right-wing domestic terror and certainly not to suggest that it was "part of some unified movement". I mean, there are right-wing terrorist movements (Christian Identity, Phineas Priesthood, etc) on the right, but that doesn't (or, shouldn't) implicate Ross Douthat.
Here is a list of (right-wing only, unfortunately) terror-related incidents since 1995, from the SLPC (nb includes only a few incidents from abortion clinics). There are dozens- fortunately, many were stopped by law enforcement before actually killing people.

When you say "this limited circumstances," I know you're referring to suspects who are, as you say, "caught red-handed." The problem is that you're advocating a pretrial determination of who was "caught red-handed." So, again, we're back at presumption of guilt being used to deny constitutional protections. Right? But only in certain circumstances. Well, which ones?

The government will only presume guilt and strip away constitutional protections from people it knows are guilty and don't deserve them.

That doesn't sound problematic to you?

There is no current exception to Miranda that allows for an interrogation of Shahzad free of lawyers

Yes there is. Miranda doesn't require lawyers to be present, it just requires that the defendant is reminded of this right. However, police and other law enforcemnt can interrogate away without a lawyer present. But the evidence won't be admissable.

and free of Shahzad saying, in effect, "I'm through talking." Such a thing does not exist.

Right, but as russell pointed out, there's nothing you're proposing that would change this. Even if we stripped every terrorist suspect of his/her Constitutional rights, if they decide they don't want to talk, we can't make them. Unless we torture them, and I'm pretty sure you don't support that.

People caught red-handed, so to speak, do not have the right to remain silent.

Who decides this? The police? The executive? Then what's to stop them from abusing it, as we recently saw police abusing other authority in Von's post?

There would still be rules, but in this limited circumstance, the rules ought to be different.

Experience, and recent history, should cause us to view with great skepticism the notion that such encroachments on rights remain limited to the limited circumstances under which they were enacted.

Many of the encroachments attendant to the War on Drugs have begun to apply to other types of crime, and law enforcement in general.

In kind, many of the encroachments attendant to the War on Terror have begun to creep into domestic law enforcement, especially that same War on Drugs (nasty little loop that is).

Once we accept that rights can be stripped for one type of suspect, the argument is too easy to make that accused mass murdrers, rapists, child molesters and drug kingpins are also awful people and should not have the full panoply of Constitutional rights when arrested.

McTex, you might be able to, Solomon like, hold the scales in just the right balance in perpetuity, but people and systems are not so wise and measured.

russell--Miranda gets a suspect the right to an attorney whenever being questioned by authorities. It is not merely a formality of the arrest. Yes, anyone can quit talking whenever they want to. It is easier to quit talking when you have a lawyer standing by. It isn't a perfect system. It's a balance.

Julien--yes, it's a lie that asking someone questions without a lawyer present presumes their guilt. That's why, in every case where a suspect waives their right to counsel, they are automatically convicted--because the waiver equates to an admission of guilt. This is sarcasm, BTW.

Adding, McTex, the irony is that of the terrorists recently detinaed (Underpants Bomber, Times Square and others), that were mirandized right away, they all sang like canaries about everything they knew.

So I also question the pressing need to strip people of rights in order to get at the "actionable" intelligence. Interrogation within the context of Constitutional protections can and do yield valuable intel.

The FBI has been doing it for decades. They were the loudest opponents of the Bush torture/indefinite detention policies because they argued that not only were they not necessary, but that they actually led to bad intelligence and, further, made prosecution harder.

russell--Miranda gets a suspect the right to an attorney whenever being questioned by authorities.

No McTex, Miranda reminds the suspect of the right, but doesn't actually grant the right itself. If you don't read them their Miranda warning, they still have the right. And in fact, because you didn't remind them, the fruits of the interrogation would be inadmissable absent an exception, such as clear and present danger (which could probably be invoked in this case, ie).

I'm sorry, I was not clear enough, but I also think you misread me a bit.

Asking someone questions without a lawyer present does not presume guilty, as you noted.

However, that's not what I meant to say, and it's not what I illustrated in my two hypos. Do you think my hypos were incorrect?

Hypo no. 1 was my representation of how criminal law currently works (ideally). A criminal defendant cannot be denied right to counsel.

Hypo no. 2 was my representation of your proposed reforms to criminal law. Using your reasoning, a criminal defendant could be denied right to counsel if the police decide that he's a terrorist (again, without a trial).

Did I misstate your position? Do you dispute my hypos?

I'll restate hypo 2 (my characterization of your proposal):

Scenario 2:

Suspect is taken into police custody. Police question suspect. He invokes his right to remain silent and asks for an attorney. The police refuse to get him a lawyer or release him. They continue to interrogate him. He asks why they are allowed to do this. They say, "Because we know you're a terrorist."

What in there misrepresents your position? If that is a correct representation of your position, please explain how your position does not presume guilt.

My sense is that russell, slarti, elm, et al fear random arrests of innocent people followed by indefinite detention after which time anyone well might admit to anything just to be allowed to go home.

Close, but not exactly.

1) I *know* that the U.S. has captured innocent people and held them for long periods without access to counsel or any meaningful checks on human rights abuses (at Guantanamo, Bagram, and unnamed CIA prisons). They have tortured and killed innocent people at these facilities. It's not a hypothetical, it's just fact.

2) Within U.S. borders, it's entirely predictable that the Police will use any new detention and interrogation powers to target not random but selected individuals for harassment. The targets won't be random, but people who are too brown, too foreign, too Muslim, too black, too familiar with his civil rights, etc...

Even a few hours of detention, interrogation, and no-warrant searches of their homes and possessions will suffice to ensure that individual never questions police authority again.

Look at my link on the treatment of the ethnically Irish in the U.K. under their Prevention of Terrorism Act. It beggars belief to think that the outcome in the U.S. would be different.

Limits on who can be arrested, how long they can be held, what the 'probable cause' threshold ought to be for a detention of more than--pick a number, 48 hours(?)--are all in play.

Those limits exist already. They're in the Bill of Rights. I refuse to throw that out on the basis of a ticking-time-bomb hypothetical.

If you really think a 48 hour interrogation and detention-for-nothing is acceptable, I assume you'll gladly report to your local jail to demonstrate how enjoyable that is. Since you haven't done anything wrong, you have nothing to worry about.

My sense is that russell, slarti, elm, et al fear random arrests of innocent people followed by indefinite detention after which time anyone well might admit to anything just to be allowed to go home.

No, not quite. It's more like this: if certain rights are inalienable, why should the government be given permission to suspend them at all, but most particularly without any kind of oversight process?

I mean: more like at all, but furthermore, without having their work checked by anyone neutral and responsible.

See, I trusted that our government had good reasons for holding a lot of the people at Gitmo, for instance, and then I trusted that if those good reasons might be made public after Obama took office, or that the ones who had been held without sufficient reason would be released.

Disappointment all around. Imagine how much I'm looking forward to these kinds of decisions being made by domestic law-enforcement authorities.

Really, I have myself to blame. I'd be happy not have to do that anymore, anytime soon.

A sustained terror campaign is a relatively new thing and doesn't graft well onto our pre-existing constitutional system.

Um. You have perhaps heard of this brand new thing, it's called the Ku Klux Klan?

People caught red-handed, so to speak, do not have the right to remain silent.

The legal recognition of a right against self-incrimination goes back in our legal tradition at least to the excesses of the Star Chamber in 16th C England.

There's a good reason it exists, and there are very, very, very good reasons to not discard it for purposes of convenience.

Law enforcement and the intelligence community have a *very very* broad range of action available to them in investigating terrorism. Very.

From what we know about terror investigations in the public record, it would appear investigation and prosecution of terrorists is inhibited *not at all* by our practice of giving suspected terrorists arrested in the US a Miranda warning. It just *does not* appear to be a problem.

People captured on the field of battle and/or non-citizens captured outside of the US are not protected by the Fifth Amendment, and so don't receive Miranda warnings currently. So no worries there.

It cost people a lot to win legal recognition of the basic civil rights encoded in the Bill of Rights. We *should not* be in a hurry to give them up.

Regarding the "militia" stuff, thousands upon thousands of people have been murdered, maimed, assaulted, and have had their homes and properties destroyed over the last 150 years by organized bands of people dedicated to white supremacy and/or violent armed resistance to federal authority.

Neo-nazis, Aryanists, violent skinheads, white separatists, splinter Mormon and other fundamentalist Christian sects, and the plain old Klan are all alive and well, all continue to arm themselves, and all continue to kill and terrorize other people.

The Michigan Militia guys and the Oath Keeper guys don't bug me that much, because they don't make a practice of killing other folks. I don't really care if they want to hang out at the rifle range or go play army on the weekends.

But there is *absolutely no* shortage of organized, violent, armed groups in this country who have documented history of actually killing people.

None.

You draw an interesting line in the sand when you say "post 9/11" but it's not a particularly relevant line. This crap has been going on since Reconstruction, and it goes on today.

The Michigan Militia guys and the Oath Keeper guys don't bug me that much, because they don't make a practice of killing other folks.

Timely!

http://tpmmuckraker.talkingpointsmemo.com/2010/05/right-wing_extremists_take_on_local_law_enforcemen.php

Right-wing extremists who question the legitimacy of Barack Obama's presidency tried to take on local law enforcement recently -- and they seem to have come out on the losing end.

First, a Tennessee man was arrested after walking into his local county courthouse to try to effect a citizen's arrest of a grand jury foreman who had refused to investigate President Obama's legitimacy to serve -- an encounter partially caught on video. That enraged one Georgia-based member of the far-right OathKeepers group. Responding to a call from an extremist leader, he drove to Tennessee with an AK-47 in a bid to get his comrade released -- only to wind up getting arrested himself.

The bizarre sequence of events began on April 1, when Walter Fitzpatrick walked into the Monroe county courthouse in Madisonville, Tenn., and approached Grand Jury foreman Gary Pettway. "I'm charging you with official misconduct," Fitzpatrick calmly told Pettway. "I'm placing you under arrest. You must now come with me."

Why was Pettway targeted? Fitzpatrick, a retired Navy commander, is a leading member of the American Grand Jury (AGJ), which seeks to convene a grand jury of citizens to indict President Obama for treason, on the grounds that he's not a natural-born U.S. citizen . . .

Definitely read the whole thing, as, despite the seeming impossibility, it's actually CRAZIER than it sounds. Then wrap your head around trying to charge someone with treason who you believe is not a US citizen.

I think we'll have to leave it at this: some would afford the full range of constitutional protections to anyone captured in the course of interdicting overseas terrorist planning and to terrorists who travel from overseas, enter the country illegally and either attempt or carry out a terrorist attack.

Others would virtually suspend the constitution for terror related investigations, regardless of citizenship, locus of the crime, etc.

Others--well, maybe just me--would suspend certain pretrial protections, for a specified time and under specified circumstances, for the purpose of gathering or attempting to gather actionable intelligence. There will be excesses. I would like to think most would be in good faith. Some will not. Excesses and undue impositions on the innocent merit compensation.

In closing, I hope the skepticism so many here have toward our government when it comes to respecting the rights of suspected terrorists will carry over to a healthy skepticism of our same government's regulatory authority over law abiding citizens.

I really have to get back to work, but I couldn't pass up a couple of these:

Phil writes:

"A sustained terror campaign is a relatively new thing and doesn't graft well onto our pre-existing constitutional system.

Um. You have perhaps heard of this brand new thing, it's called the Ku Klux Klan?"

In fact, yes I have heard of the Klan. Active mostly up through the early 60's although still around. As for their sustained terror campaign, it predated modern constitutional law. But, your point nonetheless points up my own lack of specificity. I should have said: a foreign-sponsored and executed terror campaign focused on mass casualty attacks on the civilian population.


russell contend with this statement, "People caught red-handed, so to speak, do not have the right to remain silent." Please keep in mind that the context of this sentence was and remains people who are non-US citizens caught attempting or in the process of attempting a terrorist attack on the US.

In closing, I hope the skepticism so many here have toward our government when it comes to respecting the rights of suspected terrorists will carry over to a healthy skepticism of our same government's regulatory authority over law abiding citizens.

No, the concern is about "suspects" in general, and the erosion of individual rights vis-a-vis police action.

And I'm always and dedicatedly vigilant about regulatory overreach too. That's not as big a problem these days, however, and in many cases, the opposite is the case. But that doesn't mean it couldn't end up being a problem if we don't remain so vigilant.

...a healthy skepticism of our same government's regulatory authority over law abiding citizens.

What does this mean? Has the EPA or the SEC been busting down doors without warrants and detaining people, or something, much to the delight of so many here?

What does this mean? Has the EPA or the SEC been busting down doors without warrants and detaining people, or something, much to the delight of so many here?

Ah, see, I know exactly what this means. An associate of my family happens to be a not-too-white immigrant who became a citizen and then joined the LAPD. His sister comes to visit him from another country and when it is time for her to go, he gets a special pass that allows him to take her to the gate at LAX since she doesn't speak any english. As he's leaving the airport, ICE catches him and accuses him of being an illegal immigrant.

He denies this and shows them his drivers' license. They claim it is a fake. He pulls out his badge and explains that he's a police officer. They look at the badge and marvel at what an outstanding forgery it is. He tells them to call the police and check the badge number. They laugh. Then they imprison him for a week without letting him contact anyone. No phone calls. Eventually they decide to let him go. By which time he's been fired for not showing up for work for a week.

I think this is what McKinneyTexas was warning us about: lawless federal agents illegally imprisoning Americans based on nothing who then face no sanction whatsoever. I'm sure McKinneyTexas will totally support convicting and imprisoning those ICE agents and having the federal government pay this officer a large chunk of cash, right?

In closing, I hope the skepticism so many here have toward our government when it comes to respecting the rights of suspected terrorists will carry over to a healthy skepticism of our same government's regulatory authority over law abiding citizens.

Is there, in general, reason to be?

But, your point nonetheless points up my own lack of specificity. I should have said: a foreign-sponsored and executed terror campaign focused on mass casualty attacks on the civilian population.

If you keep on parsing, you can probably eventually get this down to a category of one (1) item, but I'm not certain how useful it will be in policymaking?

In closing, I hope the skepticism so many here have toward our government when it comes to respecting the rights of suspected terrorists will carry over to a healthy skepticism of our same government's regulatory authority over law abiding citizens.

I would hope that everyone applied a healthy dose of skepticism to everything they encounter. But I admit, I feel that there's a greater need for strong skepticism:
1)regarding limitation of civil liberties v the right to participate in economic activities with possible externalities
2)where the government maintains a certain (often necessary) level of secrecy in its actions
3)where the 'victims' are relatively powerless v situations where the powerful are 'oppressed'

not to totally beat this to death, but it's still not clear to me what we would get out of carving out a Miranda exception for terrorism.

Miranda only applies when you are actually arresting someone for a crime. It doesn't make them talk to you, it simply informs them that anything they say could be used against them in prosecution.

The scenario McKinney seems to want to avoid is:

(a) we arrest someone for something related to terrorism
(b) we read them Miranda
(c) they would have told us useful information, but now that we've read them Miranda, they decide they'd rather not talk after all

is that a realistic scenario? the folks we are actually arresting in the US, where Miranda is relevant at all, appear to be, quite consistently, happy to talk with us.

if we were to run across someone who was *not* willing to talk in that situation, does anyone think that will be because we read them their Miranda rights? or would they just not be interested in talking?

we already carve out a great big world of exceptions to ordinary civil rights protections in the name of the war on terror. i'm not interested in giving up any more unless there is some clear benefit in doing so. even then, probably not, but if you want to put it on the table for discussion you really are obliged to show why it's needed.

I'm stuck on two points.

McKinney's view that some terrorists, at least, are like porn -- you know them when you see them, and you don't need pesky things like trials, or arraignments, or really anything beyond some guy, somewhere, saying "Yep, looks like a terrorist allright".

And by the examples used, what terrorists LOOK like "Brown". (The white ones are mentally ill, or criminals, or something -- despite the fact that they also use car bombs, and fly planes into buildings).

So, yeah, apparently brown people don't get the same rights as white people. Because, when you strip all the fancy words away, that ALWAYS seems to be the difference between suspects who deserves rights, and those who can be safely tossed away without bothering with any sort of due process besides government fiat.

The second point is, of course, the question of "What does Mirandizing subjects really harm?". Does it not occur to these burgeoning criminals that they can, in fact, close their mouths, until police inform them of that?

"They might not talk if they're told they can stay silent and ask for a lawyer!". Well, first and foremost -- people planning a crime tend to already KNOW that they have those rights. Secondly, and most importantly -- Mirandizing them doesn't GIVE them those rights. It's a reminder to cover the state's butt, not the criminals.

McKinney -- and sadly McCain, and Lieberman, and a host of other people both famous and not -- seem to think these suspects don't HAVE those rights until they're read.

Or in Lieberman's case, don't really have any rights at all.

It should also be noted that you can't really legislate Constitutional protections away.

Rather, you would need an amendment to do that. So, aside from being a policy choice that I don't agree with, such measures would be exceedingly difficult to enact.

So, yeah, apparently brown people don't get the same rights as white people. Because, when you strip all the fancy words away, that ALWAYS seems to be the difference between suspects who deserves rights, and those who can be safely tossed away without bothering with any sort of due process besides government fiat.

Not always.

Sometimes it's jews, homosexuals, gypsies, counterrevolutionaries, critics of dear leader, catholics, the ethnic Irish, ethnic Japanese, Hutu, Native Americans, etc...

The logic is always the same. Group X threatens our civilization. Group X are not like us. Because Group X presents such a danger, we can't afford to allow them any human rights. Human rights are for good Us-like people who deserve them.

"It should also be noted that you can't really legislate Constitutional protections away."

Somebody better notify http://politicalticker.blogs.cnn.com/2010/05/06/lawmakers-press-holder-on-use-of-watch-list/>Senator Lautenberg about that. He's a bit unclear on the subject.

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