American Terror

>> Wednesday, March 17, 2010

Some mornings I just don't recognize my country at all.

This morning it's a look at a bill Senators Lieberman and McCain submitted two weeks ago that sort of slipped my notice somehow until I saw Marc Ambinder's piece in The Atlantic today. It's a helluva piece of work, and the bill's worth a read--when the spineless Dems in Congress let it pass, you can know just how it happened here.

Ambinder's focus is on the fact that the bill would allow the military to detain American citizens suspected of "acts of terrorism" indefinitely. Which is, frankly, awful. But I'm not sure it's the worst thing in the bill.

The worst thing in the bill might be this: first, it explicitly prohibits suspects from being read their rights under Miranda even if they're otherwise entitled to them (Section 3, subsec. B(3):

INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS.—A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Note that language--"may or may not have"; the McCain/Lieberman bill skips over any legal argument over whether a particular detainee might have any rights and simply says he shall not be read those rights with no determination of whether or not he in fact has them; may or may-not, doesn't matter.

Now, believe it or not, this may or may not be a problem in and of itself.

See, Miranda is an exclusionary rule applicable to civilian criminal trials. If you're arrested, and the cops fail to Mirandize you, and the State indicts you and tries to prosecute, Miranda says the State can't use your statement against you in court (or evidence that was gathered as a direct result of that statement). If a hundred witnesses saw you do it (whatever it was), the State can still call those witnesses. If there's an expert who analyzed evidence that was gathered independently of your statement, the State can still put her up on the stand to testify about what she discovered.

Now, let's say you're a terrorist, a real-deal America-hating motherfucker like li'l Timmy McVeigh, let's say. (What, you figured I'd pick a foreigner when there's a homegrown son-of-a-bitch available--I may be okay with globalization, but not when outsourcing will deprive us of an exemplar par excellence right here at home?) And let's say the cops fail to Mirandize you when you spit out your buddy's plans to blow up another building--that ridiculous "ticking bomb" scenario certain people wet their pants over--do the police have to shrug and say, "Oops, can't do anything about that other truckful of explosives because you forgot to Mirandize the perp, Doug, nice goin'"? Hell no--they can do what they have to do to prevent bomb plot number two. Hell, they can still prosecute you for whatever they have evidence for regarding plot number one--all Miranda does is keep them from reading your statement into evidence or using any evidence of your involvement in plot number two obtained as a result of your statement (again, other evidence might still be admissible against you).

This is where the McCain/Lieberman bill gets ass-ugly. It does two things after stripping suspects of their Miranda rights, if any: first of all (for our discussion), Section 4 prevents any "unprivileged enemy belligerent" from being prosecuted in a Federal courtroom:

LIMITATION.—No funds appropriated or otherwise made available to the Department of Justice may be used to prosecute in an Article III court in the United States, or in any territory or possession of the United States, any alien who has been determined to be an unprivileged enemy belligerent under section 3(c)(2).

This, in and of itself, is awful. I mean, what we should want is to have a battery of solutions for dealing with actual, honest-to-goodness terrorists, including terrorists who are "unprivileged enemy belligerents." While a fan of our court systems, having worked in one for roughly a third of my life now, I'll concede for the sake of an argument (at least) that maybe there's somebody out there who can't be tried in a civilian court; hell, I could concede (for argument) that there might be some sort of terrorist who can't be tried anywhere (though, really, I've never heard of a real-life congenital birth defect producing a real-life Magneto; but I'm an SF/F nerd, I can imagine it would be hard to hold a trial for a mutant supervillain) while still saying, "Hey, let's at least hold open the possibility just in case we decide we want to." McCain and Lieberman would actually take a tool out of our toolbox with no consideration of its utility. That's not merely a slap in the face to the Republic our Constitution creates, it's also really fucking stupid.

But wait, it gets worse. This is thing number two, though it comes earlier in the bill: notice how Section 4 says no civil prosecutions for anyone determined to be an "unprivileged enemy belligerent under section 3(c)(2)." That latter phrase, a term of art defined later in the bill as follows:

UNPRIVILEGED ENEMY BELLIGERENT.—The term "unprivileged enemy belligerent" means an individual (other than a privileged belligerent) who—

(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposely and materially supported hostilities against the United States or
3 its coalition partners; or

(C) was a part of al Qaeda at the time of capture.

Let's leave aside how scary clause #2 is. (And it is scary, since it's one of those catchall "means what we say it means" formulations--is a lecture or pamphlet "material support"? A "purposeful" donation to an ostensibly non-terrorist organization that is later discovered to knowingly or unknowingly support terrorists abroad?) What's actually really bad here is that the determination of whether you're even one of those "unprivileged enemy belligerents" who can't be tried in a Federal court occurs after you've been interrogated with no Miranda rights.

Hell, this should be scary even to people who don't care all that much about their civil liberties. What this bill means is that you could have a situation where somebody who is suspected of being an "unprivileged enemy belligerent" but isn't, but who has still potentially violated Federal law, gets questioned without being Mirandized, who cannot be Mirandized. Miranda is Constitutional law now--have the Feds investigating our suspect shot themselves in the foot because they were required by law to obtain an inadmissible statement? Or is Miranda now wholly situational? And regardless of whether a person is or isn't an "unprivileged enemy belligerent," violations of Federal law are likely to also be violations of state law--there's no reason, for instance, that the State Of New York can't prosecute those responsible for 9/11 for more than 3,000 counts of murder and/or conspiracy to commit murder regardless of whether there's a Federal trial (indeed, dual sovereignty means the State Of New York can prosecute the architects of 9/11 even if they're convicted in Federal trials).

There's other awful stuff in this bill that reflects a fundamental mistrust of, misunderstanding of, and pure contempt for American law and legal institutions. I'm out of time now, but read it yourself. It's terrible. I can't help pointing out, too, that the architects of this reprehensible turd both had realistic presidential aspirations; one has to wonder how on Earth they planned to take yet another oath to uphold the Constitution of the United States when they're both so dead-set on breaking the oaths to do so they took as Senators and, in the case of Senator McCain, as a member of the armed services.

Anyway, read the bill for yourself. It's bad.


Janiece Wednesday, March 17, 2010 at 2:37:00 PM EDT  

Yikes, yikes, yikes. My next stop will be my Senator's offices.

Christ on a crutch!

Seth Wednesday, March 17, 2010 at 3:18:00 PM EDT  

"The bill asks the President to determine criteria for designating an individual as a "high-value detainee" if he/she: (1) poses a threat of an attack on civilians or civilian facilities within the U.S. or U.S. facilities abroad... or (5) such other matters as the President considers appropriate."

That kind of language is bad, bad news. Thanks for posting this.

Rachael Wednesday, March 17, 2010 at 4:41:00 PM EDT  

For the sake of completeness (and for ease of locating the bill via THOMAS) it's S 3081. It's currently been read twice and referred to the Judiciary Committee. Here's hoping they set it on fire.

Eric Wednesday, March 17, 2010 at 5:03:00 PM EDT  

Thanks for the number and update, Rachael! (There's a link in the first paragraph to the version available on The Atlantic's website, but it doesn't include the number, which would be helpful when contacting Senators or tracking it.)

Janiece Wednesday, March 17, 2010 at 5:08:00 PM EDT  

Yes, thanks, Rachael. Not only have a pinged both of my Senators, but every member of the Judiciary committee, as well.

Set it on fire, indeed.

Nathan Wednesday, March 17, 2010 at 5:46:00 PM EDT  

I'm also looking into whether or not there's a Constitutional mechanism for removing Connecticut from the Union if they elect that ass again.

mfheadcase Thursday, March 18, 2010 at 2:05:00 AM EDT  

What i just sent off to my senators in Indiana, Feel free to snag, modify, offer corrections etc:

I am writing this note to both of the senators of my state of residence. Simply put, I believe that if the "Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010" bill passes it will be the death knell for rule of law in this nation.

Your basic criminals may well still be prosecuted, but this bill removes necessary limitations from the other side of the equation.

If anyone may be turned over to the military, without charges, to be held indefinitely, on suspicion of being an "unprivileged enemy belligerent" then everyone is at risk.

And the specific removal of the Miranda warning ensures that any self-incriminatory statements made by these suspects may NOT be used n a US court should they ever be prosecuted.

This is not rule of law, it is rule by fear, and t is rule by authority that may not be questioned.

This has no place in a free nation of free people, and I beg you to stand against this.

Anonymous,  Thursday, March 18, 2010 at 10:29:00 AM EDT  

At the end of the first Constitutional Convention a woman is said to have asked Ben Franklin what sort of government they had given the nation; Mr. Franklin is supposed to have answered ".. a republic, Madam, if you can keep it". We may be answering this question in this bill. A resounding "we couldn't"!

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