Graham and McCain: Bill of Rights? What Bill of Rights?

Among the predictably ridiculous responses to the pursuit and ultimate arrest of one of the perpetrators of the Boston Marathon bombing was Sen. Lindsay Graham and John McCain saying that Dzhokhar Tsarnaev should not be covered by the Constitution now that he’s been arrested.

Just put out this statement with John McCain about the suspect captured in Boston and whether they should be held as an enemy combatant.

“We truly appreciate the hard work and dedication of our law enforcement and intelligence communities.

“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans.

“Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

“Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

“We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.

“We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.”

Yeah, why would we want to enforce the Constitution and respect the rule of law? We should just pick and choose who gets the privilege of due process. Now remember, this guy would undoubtedly profess his undying love of and devotion to the Constitution and his endless belief in the genius of the Founding Fathers — you know, the ones who wrote the 4th and 5th Amendments that guarantee those rights to Tsarnaev (and to all of us too).

And you can bet that this will now be the story in the right wing blogosphere and on Fox News for the next few days, how Obama was undermining our security by trying this guy in civilian court and how he should have been tortured. They will spin lurid tales of how he’s being waited on hand and foot and fed caviar and lobster when he really should be in Gitmo. And they will of course ignore the fact that we have prosecuted hundreds of terrorists over the last 20 years, all of them successfully.

They will also ignore the fact that there is absolutely no legal way to do what they want done. There is no way in hell that any court is going to allow an American citizen who committed a crime on American soil to be declared an “enemy combatant.” Any decision to treat him as such would be overturned immediately by the federal courts and the DOJ surely knows this. The last thing they want is to attempt to do something that cannot be done. Nor is it necessary. The suspect was not read his Miranda rights when he was arrested because the police invoked the public safety exception, which is well established in the law and often used in terrorism cases.

It isn’t even entirely clear that the feds have jurisdiction over this case, as opposed to the Massachusetts state court. The federal terrorism laws have some very specific definitions that may very well not be met in this case; we won’t know for sure until more information is available about their motives and goals. The federal definition of terrorism requires that the violent acts must be done “to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” It isn’t clear yet that this is what happened; this may well be more like Columbine than 9/11.

47 comments on this post.
  1. D. C. Sessions:

    There is no way in hell that any court is going to allow an American citizen who committed a crime on American soil to be declared an “enemy combatant.”

    I wish I were as sure as you are of that.

    Rather more to the point, the objective that the “protect the Land of the Brave at all costs” faction (the ones that took an oath to defend the Constitution) are aiming for is to torture him for a few years and then (since evidence obtained under torture is inadmissible) simply hold him without trial for the rest of his life. Which will probably be short, due to some unfortunate accident.

  2. tsig:

    We have to destroy the constitution in order to save it.

  3. Modusoperandi:

    Look, there’s nothing in the Constitution that says you can’t torture terrorists.*
     
    * Look, there’s nothing in the rule book that says a dog can’t play basketball.

  4. whheydt:

    According to some reports this morning, it may turn out that NO ONE can interrogate him. Some of those “neck injuries” he has are, apparently, to his throat and he may never talk again.

  5. raven:

    I don’t think these bombers are American citizens.

    Still, there is no reason not to treat them like any other homicidal criminals. We do that with more prolific murderers such as Timothy McVeigh.

    I still don’t see what they hoped to accomplish. Most of the time violence is counterproductive. This seems to be another such case.

    1. A lot of people have never heard of Chechnya or Chechens. They have now and not very favorably.

    2. One of the few nations vaguely sympathetic to the Chechens was…the USA. We criticized the USSR for being a bit too heavy handed stomping on their insurrection. Probably mostly on the basis that the enemy of our enemy is our friend.

    Next time the Russians crack down in the North Caucasian region, I doubt any one is going to care much. They sort of vaporized any potential sympathy in Boston.

  6. slc1:

    Re raven @ #5

    It is my information that the miscreant currently in custody is an American citizen, although his deceased brother was denied citizenship due to a arrest.

  7. dingojack:

    Actually I believe the elder brother (at least) was a naturalised US citizen. Both were granted political asylum.
    Dingo

  8. dingojack:

    OK I’m willing to go with SLC’s version – as mine is decidedly third or fourth-hand.
    Dingo

  9. Kevin:

    Raven: You are mistaken. Dzhokhar is a naturalized US citizen. He took his oath on 9-11-12.

    His brother was not. Seems he ran afoul of immigration policy when he was charged in a 2009 domestic dispute. This apparently screwed the pooch as far as him ever becoming a citizen. And since then, he apparently had a beef with the US government. And turned to Islam as a way to vent his anger. Go figure.

    HOWEVER, even if neither were a citizen, even if both were here illegally for that matter, it does not abrogate their rights under US law and the Constitution. Seriously, what part of “equal protection under the law” is not understood?

    If we cannot enforce protections for the most-horrid, what right do we have to enforce protections for the less-horrid…or the innocent?

    We’re either a nation of laws or we’re not. It’s just that simple.

  10. Jasper of Maine:

    So basically they’re “Fair-weather constitutionalists”

  11. democommie:

    “Still, there is no reason not to treat them like any other homicidal criminals. We do that with more prolific murderers such as Timothy McVeigh.”

    Wrong, There are three reasons.

    1.) They are not REALLY white people.
    B.) They are not birthright MurKKKans.
    VI) They are MOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOSLIMS.

    And if you count, “JESUS and that’s why, SHUT-UP!!”

    there’s at least a couple more.

  12. democommie:

    @10:

    Jasper, you don’t have your wingnut “thinkin’ cap” on. McStain and Gollum are “textualists” like Scalia. It’s all about what the KKKristianfounders SAID/MEANT when they wrote the document (or maybe it’s “texturalist”–and has to do with how one “feels” about various aspects of the Constitution). So, if you amember your history you’ll know that when they signed it in, in the blood of CHRIST in Philadelphia in 1776 that REALLY white MEN who owned property (including black people?) were the only ones who had rights or any say in how things got done. If you’re unclear on this, google “David Barton” and, um, stand on your tippytoes if you wade into that sewer.

  13. busterggi:

    Clearly you did not read the section of the Constitution that says it only applies to Christians of Western European descent.

  14. Who Knows?:

    We’re either a nation of laws or we’re not. It’s just that simple.

    Kevin! Did you forget! 9-11 Changed everything!

  15. drr1:

    Graham’s and McCain’s comments are utterly reprehensible, and reflect a moral depravity that redounds to our everlasting national shame. Even more shameful is that a not insignificant (numerically, at least) portion of our society agrees with them, without reflection or reservation.

    Even Justice Scalia draws the line at citizenship. See, e.g., Hamdi v. United States (Scalia, J., concurring) (absent suspension of habeas, an American citizen suspected of criminal wrongdoing must be charged appropriately in an Art. III court, or released). That said, there is precedent for depriving American citizens of constitutional safeguards (e.g., Bradley Manning), and if our government has proved anything, it is that our leaders will not be deterred when they are determined to ignore the Constitution.

    For better or for worse, this is one way that constitutional change happens. We now seem to have a bipartisan consensus that under certain conditions (determined ad hoc, of course) American citizens can be held (or worse, killed) without process. When the rule of law becomes optional, you really can’t call it a rule anymore.

  16. Hercules Grytpype-Thynne:

    @raven:

    Google is your friend. The younger brother got his citizenship last year.

  17. dickspringer:

    I am older than McCain, but unlike him I have not lost my marbles; after all, he once was a man of character. I think Lindsay Graham never was a man of character.

  18. Bronze Dog:

    Rather more to the point, the objective that the “protect the Land of the Brave at all costs” faction (the ones that took an oath to defend the Constitution) are aiming for is to torture him for a few years and then (since evidence obtained under torture is inadmissible) simply hold him without trial for the rest of his life. Which will probably be short, due to some unfortunate accident.

    I almost consider pro-torture rhetoric to be an act of counter-intelligence espionage at this point, but I have to remind myself that there are way too may people who stupidly and naively think torture is a magical, infallible means of obtaining the truth, since that’s how it works in Hollywood.

    It’s supposed to be common knowledge that torture subverts the reliability of the information. If the victim is actually innocent or ignorant, he’ll tell the torturer whatever preconceptions he wants to hear, enshrining the torturer’s unevidenced speculations as truth. If the torture victim is actually a terrorist with vital information, he can lie any way he wants to and let the torturer decide which lie to believe, wasting the investigator’s time. It cedes control to the terrorist. If the torture victim tells an implausible-seeming truth (including protestations of innocence), the torturer won’t believe him and will continue the torture until he gets a lie he wants to hear.

    In any of those cases, the “evidence” provided by torture is much too likely to be outright false, which is why it’s inadmissible. The torturers might as well motion for the dismissal of all charges. It’d be a perverse way of aiding the terrorists in court: knowingly preparing the cases to be thrown out due to lack of admissible evidence, wasting our intelligence resources on premeditated failures, and further ruining our national reputation in terms of both morality and competence. Unfortunately, they’re “fixing” that problem by skipping the trials altogether, so we’ll never get to know who’s guilty or innocent of anything. Meanwhile, the sheer spectacle serves as a recruiting tool for terrorist organizations.

  19. wscott:

    The suspect was not read his Miranda rights when he was arrested because the police invoked the public safety exception

    This may seem like a nitpick, but the idea that police have to read you your rights in the middle of an arrest is 99% Hollywood bullshit. They are required to read you your rights before they start to question you, which usually does not take place until later. Now during the arrest, they can ask questions like “where’s your brother” and “do you happen to have any explosives in your pockets,” which is what I assume you mean by “public safety exception,” but that’s true with any arrest, not just terrorism. Any questioning not related to immediate life-safety concerns is usually done later and away from the site of the arrest, and that is when Miranda kicks in.

  20. some bastard on the net:

    Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes.

    And reading him Miranda will inhibit this, how? The police/feds can question him all they want, regardless of whether or not Tsarnaev talks back to them.

  21. Reginald Selkirk:

    The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise…

    Uh yeah, because if they were trying to make a buck, that would make it all OK. Effing Republicans.

  22. Ace of Sevens:

    If they think there are more bombs planted, they can question him about that under the public safety exception. There’s no way they’ll be able to fit questioning him about bombs that already went off under there, though.

  23. dingojack:

    Furthring Reginald Selkirk’s post #21 –
    Note to future terrorist bombers: make a veiled ransom demand first, then it’ll be A-OK according the Party o’ God.
    @@
    Dingo

  24. dingojack:

    Oops – ‘furthering’
    Dingo

  25. mvemjsun:

    Their God is a terrorist. The bible is his confession and they did not even have to tortue him for it.

  26. slc1:

    Re Ace of Sevens @ #22

    There’s no way they’ll be able to fit questioning him about bombs that already went off under there, though.

    They can do anything they want to do until a judge tells them to stop.

  27. psweet:

    Isn’t it true that reading Miranda rights is intended to inform the person arrested of rights he already has? And given how much exposure the idea gets on TV, it’s hard to believe that anyone who grew up in the country hasn’t heard them, so I’m not sure what refusing to read them really means.

  28. tfkreference:

    I wondered the same thing as psweet. Does not reading him his rights mean they are going to deny them?

    By the time I learned about the Miranda case in high school, I had watched so many episodes of Adam 12 that I had the warning memorized. Today, you can hardly click through the channels without stumbling across a police procedural drama; he must know his rights.

  29. Infophile:

    @27: It’s one thing when you’re watching a television show from the comfort of your living room. It’s quite another when a police officer is yelling at your face, acting like a barely-restrained Jack Bauer, demanding to know why you did it. In the latter case, you’re a lot less likely to remember that you don’t actually have to answer any questions unless they specifically tell you this.

  30. bengilder:

    I can’t comment on the constitution part of this argument. That said I think that laws to combat regular criminal activity are not really intended to combat terrorism. Terrorism is an international phenomena and is an attack on specific beliefs(lack of belief) and nations. It does seem to me that keeping the aforementioned in mind, are the anti-terrorism laws well written enough to do their job.

  31. mikeyb:

    No matter how or where he is tried, the right will predictably demagogue this, use it to somehow blame it on Obama as a security failure, hype any links to radical Islam and use it to jettison any chance of even weak immigration reform. They’ll keep a count on how many times Obama uses the word “terrorism.” Of course he won’t use it enough which will be proof that he doesn’t believe terrorism is real, or isn’t serious about fighting terrorism. So pathetic and predictable.

  32. meursalt:

    wscott #19 has it right. Miranda warnings are optional at time of arrest. They can’t continue to question you once you request a lawyer, but the idea of a mandatory Miranda warning is pure fiction. This is well-established by precedent.

    This is particularly sad coming from McCain. You’d think he of all people would be sensitive to these issues, after his experiences in Hanoi. I had a bit of respect for him several years ago when he broke ranks with the Republican party about our war efforts. That respect didn’t last long.

  33. dan4:

    #32: “…when he broke ranks with the Republican party about our war efforts.”

    Just curious what you mean by this. Is this in reference to McCain’s opposition to waterboarding?

  34. meursalt:

    I’ll have to dig up a reference. It was around ’06 or ’08; I think he was among the first Republican legislators to advocate scaling back our presence in Iraq and possibly Afghanistan.. The was before the “surge” IIRC. I’ll do a search and report back.

    Also, please note where I said “bit” and “didn’t last long.” ;)

  35. meursalt:

    Looks like my memory is less than perfect. According to Wikipedia, he did quite a bit of flip-flopping on the Iraq and Afghanistan war in the first half of the last decade. It must have been one of the “flop” statements that gained my grudging respect for a brief moment. He has generally been more of a hawk than I realized.

    https://en.wikipedia.org/wiki/Political_positions_of_John_McCain#Iraq_War

  36. Ace of Sevens:

    @32: They can question you all they want without a Miranda warning. They just can’t use what you say say as evidence in court against you. If they question him about something with no plausible public safety connection without a lawyer, his lawyer will get it excluded at trial.

  37. Lofty:

    As it seems the young man may have attempted to take his life with the throat shot, keeping him alive may be the form of torture he dreads most.

  38. thumper1990:

    And of course they’d have said exactly the same thing if it had turned out to be good Christian Pro-lifer terrorism, wouldn’t they? Of course they would…

  39. democommie:

    For those of you who forgot (or lost to Ed in a hand of “FTB Hold’em”) your Wingnuttese decoder rings. What McStain and Gollum are saying is that the 4th Amendment and due process are amorphous and variable, depending upon skin color, ethnicity, beiliefs and social station unlike, for instance the Sacred 2nd Amendment which is, like JESUS, absolute, inviolable and everlasting.

    You’re welcome.

  40. auditorydamage:

    People who yak about small government and consider Obamacare an abomination suddenly trust the government to inflict pain and suffering on someone because of things they saw and heard in the same press that last week was the liberalest bunch of lying liberals that ever liberaled.

    Do these jokers not understand why the state is supposed to present their evidence at a public trial, in front of a judge and jury, before any kind of punishment is even considered? They want to dispense with one of the clearest checks on the power of authorities to control people because they’re scared? Isn’t that basically capitulation to terrorism, letting the state take on dictatorial powers out of fear? Don’t they at least want the government to demonstrate they’re holding the correct asshole before subjecting him to their Jack Bauer fantasies?

    Norway practically screamed its ongoing committment to openness and rule of law after Anders Breivik killed 70+ people. The US… well, it’s been a while since anyone in power paid even lip service to the most rudimentary limits on what authorities can do to whomever they wish. Anyone remember Jose Padilla?

  41. democommie:

    @40:

    Okay, Mr. Smartypantscommunist, you’re pwned. Any idiot who doesn’t get their news from NPR or one of those stupid “broadsheet” newsrags knows that Jose Padilla was NOT a norwegian. They got “Black Irish” in Ireland but there ain’t no sortabrowns with names like Lars and Sven livin’ in Norway (besides, that part of Russia is where all of those chetniks* came from)!

    “Do these jokers not understand why the state is supposed to present their evidence at a public trial, in front of a judge and jury, before any kind of punishment is even considered?”

    That’s a trick question, right? RIGHT?? He’s ONEATHEM! HE WAS BORN GUILTY!!

    I speedwatched “Quiqley Down Under” last evening (I confess to liking Tom Selleck’s acting, even though I hate his politics and Alan Rickman is possibly one of the best at playing a sneering cad). After Selleck’s character has killed the last of the 15-20 evil minions and the minionater, he is surrounded by a company of British Light Cavalry whose commander indicates his perfect willingness to hang or shoot Mr. Quiqley, sans any troublesome trial or even arrest. His musings on the subject are interrupted by the sound of didjiridoos or bullroarers, signalling to the British Major that he needs to look up to see the thousands of primitve, savage “abos” that have surrounded his now paltry looking posse. The movie had a much more satisfying conclusion than the current situation vis-a-vis Mr. Tsarnaev’s prosecution/imprisonment is liable to offer.

    I

    * A less peacable cousin of the “beatnik”.

  42. ohioobserver:

    What they’re saying is…lemme see if I got this right…terrorist fanaticism is more powerful than due process and rule of law…because when we’re dealing with terrorists (real or imagined), due process and rule of law (which we invented in its modern form) is defeated and discarded. Basic legal principles are too weak to defend against terrorists.

    Nice to know these guys have so little faith in America.

  43. trucreep:

    Glenn Greenwald’s article on this is spot-on as usual, but definitely brings a good question to the forefront; why do we let O get away with this?!

  44. baal:

    I watched Lindsy Graham make the “Us citizen is an ‘enemy combatent’” with mixed feelings. I was partly enraged because it’s tantamount to declaration of removal of all rights and I was partially chilled since he was talking about an American citizen. The thin excuse for the abuses of Gitmo and the CIA black Ops sites (former soviet torture camps now serving as us torture camps) and rendition (including to our good friend Syria) was that we’d never ever do that not-torture stuff to Citizens, it’s insulting of you to even suggest that we’d go there….

  45. kermit.:

    trucreep, why do we let O get away with this?!
    .
    I reluctantly voted for Obama the second time because I was worried about Romney, I almost immediately regretted it, and I intend to vote Green next time. Not that it will do any good; we’re running out of time.
    .
    Why do I let Obama get away with this? Probably for the same reasons most others do – I am too busy making ends meet, and I suffer from third stage outrage exhaustion.

  46. democommie:

    “why do we let O get away with this?!”

    Because he doesn’t always.

    NPR just said that a WH spokesman had stated that Mr. Tsarnaev would not be tried as an enemy combatant.

    I am not thrilled with the president’s performance. I am pretty sure I would be substantially less thrilled with what any of of the current crop of GOPricks would do if they had been elected.

    Voting “Green”, like voting “Libertarian” is a great way to show your displeasure with the democrats. You might notice that the numbers for Bush 2004, McCain 2008 and Romney 2012 are far too great to engender a sense of comfort in that regard.

  47. M, Supreme Anarch of the Queer Illuminati:

    @ 41 –

    Alan Rickman is possibly one of the best at playing a sneering cad

    FTFY.

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