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Why it is important to protect due process rights in times of anger

Now that the hunt seems to be over for the people who carried out the Boston marathon bombings, there is some debate over what rights the captured person has, particularly his Miranda rights. There are those who make the facile argument that the bombing was an ‘act of terror’ and that those accused of such acts are not deserving of due process rights. Apparently the suspect is not going to be read his Miranda rights until after extensive questioning.

Some are asking what exactly the difference is between an ‘ordinary’ crime and an act of terrorism. People often avoid drawing sharp lines because one then finds that the results do not always match one’s prejudices and agenda. For example, a distinction that could be made is that terrorist acts are also crimes but a subset of them that are aimed at instilling fear in, or punishing, a generalized population as opposed to targeting specific individuals. But by that definition what are referred to as ‘hate crimes’ would also be acts of terrorism, which may not be what people want.

This is why people do not carefully define politically charged terms like ‘terrorism’ but tend to use them in an ad hoc way as rhetorical weapons to suit their immediate purposes. The word ‘terrorism’ is now used to instill fear whenever people want to stampede us into abandoning commitment to the rule of law and due process. Glenn Greenwald has a good essay on why it is precisely at times like this, when someone is widely reviled and hated for allegedly committing some atrocious act, that it is especially important to make sure due process rights are protected although the Obama administration, with the complicity of the Democratic party, has already gutted Miranda rights protections in the ‘war on terror’.

It is a little ironic in a way. I am a fan of old western films and a recurring theme in them was the sheriff who holds at bay angry townspeople who want to mete out summary justice to a prisoner in his jail, because he wants that person to have a fair trial. In those films we rooted for the sheriff but nowadays it seems like we are rooting for the mob.

Comments

  1. Rob Grigjanis says

    I am a fan of old western films…

    Me too. The Ox-Bow Incident, with Henry Fonda, is a very powerful film about frontier “justice”. Unfortunately, the sheriff was out of town, as seems to be the case in the US now.

  2. tuibguy says

    I was also a fan of “To Kill a Mockingbird” in which Mr. Finch sits guard at the jailhouse to prevent a lynching.

  3. ollie says

    As I understand it, “terrorism” is an act to advance some political or social goal rather than some personal one.

    In this case: of course he deserves a trial; I also hope we can learn something about possible motives.

  4. jamessweet says

    I don’t really understand the fucking point anyway. The guy has been living in America for a decade; I’m pretty sure he’s heard the Miranda rights a thousand times on TV, and while that doesn’t necessarily mean he understands them, reciting them to him one more time is certainly not going to spoil the investigation or whatever the hell these people are afraid of. I just don’t see the point of flagrantly flaunting due process, for what seems to me like no actual benefit.

    On the flip side, it makes me somewhat less incensed than other potential violations of due process, because I don’t think the Miranda thing is going to make much a difference either way… But still. Violating due process for no particular reason, it’s very aggravating.

  5. hoary puccoon says

    My son-in-law (the one who lives in Watertown) said that he was told, if you haven’t been read your Miranda rights, what you say can’t be used against you in court. (Even though the kid undoubtedly does know about his right to an attorney, etc.) So, essentially, this is a legal ploy to encourage the suspect to give them information about other potential terrorist attacks, without technically incriminating himself.

    After the FBI has gotten all the information they can, he will then be read his Miranda rights. Only statements he makes after that point can be used against him in court.

  6. Mano Singham says

    Yes, that is USUALLY true. But as Greenwald says, there was a later controversial ruling that said that under very special circumstances of imminent danger, statements made before Miranda rights CAN be used in court. The Justice Department is clearly planning to abuse that provision by claiming that those conditions have been met here. It is yet another case of the government using high profile events and unsympathetic defendants to expand its violations of due process.

  7. eigenperson says

    What the “Justice” Department is planning to do hardly matters. It’s the judge’s ruling that matters.

    If they try to introduce the testimony, they’re taking a risk, since if the judge (or worse, the Court of Appeals) rules against them it would be an expense and an embarrassment.

    I doubt they will try to introduce anything from the interrogation anyway (assuming one is even possible), since there are enough photographs and witnesses to make whatever case they need to make without going into shaky legal areas.

  8. hoary puccoon says

    Ah. I went back and read the Greenwald piece. So the issue is not whether someone has been read his Miranda rights; it’s whether statements made before being read one’s Miranda rights can be used as evidence in court.

    It still seems preferable to being declared an enemy combatant and left to rot at Gitmo. But in this case, there is so much other evidence against the kid, it’s too bad they can’t go for a conviction on that evidence and leave Miranda alone.

  9. Mano Singham says

    I think it would be easy to get a conviction even with a strict application of Miranda. What I think they want to do is use this case to create a precedent for shredding Miranda, since there will be so little sympathy for the accused.

  10. drr1 says

    The past dozen or so years really have been a textbook example of constitutional change in action. In times of actual or perceived emergency, it’s easy for the government to justify the withholding of constitutional protections. Citizens are quite content to go along, especially when they are told, publicly and repeatedly, that failing to do so is unpatriotic, or downright treasonous.

    But it works like a one-way ratchet: once we’ve forsaken the rights, we won’t get them back again. The government will not relinquish power that it has managed to wrestle away from the governed. Mano is absolutely correct when he says that what the government wants to do is “use this case to create a precedent for shredding Miranda… .” And when the next case comes along, it will be, “Well, this bad guy is almost as bad, or as serious a threat, or as grave a danger to the nation, as the Boston bomber, so we don’t need to worry about Mirandizing him, either.” Of course, Miranda rights are rather trivial when the Chief Executive claims the power to execute citizens without process.

    When we treat it as optional, the rule of law is neither a rule, nor is it the law.

  11. VeganAtheistWeirdo says

    I’m afraid you’re right. And this is why we can’t condone it, even if there is nothing we can do to influence a change in this particular instance.

    You mentioned the expectation for a lack of sympathy for Tsarnaev. While I imagine that’s probably accurate, especially in the Boston area right now, I confess I found it hard to connect the wounded teenager hiding in a boat, having flashbangs and/or teargas lobbed at him, with a cold-blooded terrorist who killed strangers for a cause. Yeah, I found myself feeling sorry for him. However ridiculous or projected.

    He should have a fair trial and face punishment appropriate to what he is found guilty of… like anyone else. That is, if he fucking survives. It’s depressing that even this relatively positive outcome (suspect taken alive) has managed to leave me feeling less than proud of my countrymen and my government.

  12. hoary puccoon says

    Being a woman of a certain age, I have a *lot* more constitutional rights than I did when I was born. The Supremes didn’t even consider applying the 14th amendment to women until the 1970’s, and it didn’t really take effect until people were looking for excuses not to ratify the ERA.

    And I was hugely better off when I was born than African Americans were. So saying rights are only taken away, never expanded, is simply not true.

    I think it’s a good idea to speak out in support of Miranda rights– although we won’t know if the kid’s rights are being violated until the trial.

    But the history of America does not support the idea that rights are never expanded only taken away. (Come to think of it, I didn’t have Miranda rights when I was born, either.)

  13. drr1 says

    hoary puccoon wrote:

    So saying rights are only taken away, never expanded, is simply not true.

    and

    But the history of America does not support the idea that rights are never expanded only taken away.

    If, as it appears, you’re trying to respond to me, you’re not. I never said what’s quoted above, nor is what’s quoted above a fair restatement of what I said. What I said was “once we’ve forsaken the rights, we won’t get them back again. The government will not relinquish power that it has managed to wrestle away from the governed.” Once we let the government take rights from us, the government won’t relinquish those rights back to us.

    I’m well aware of Reed, Frontiero, and the other landmark gender rights cases, but they have absolutely nothing to do with the point I was making above. And, by the way, it simply isn’t true that “we won’t know if the kid’s rights are being violated until the trial.” If the government pays you less money for doing the same work as a man, because you’re a woman, do you need a trial to tell you there’s been a constitutional violation? That claim just doesn’t withstand scrutiny, unless you’re making the claim that rights don’t exist until the government (e.g., a judge, in a trial) says they do, and that they’ve been violated. If that’s your claim, then we disagree about something entirely different.

  14. Mano Singham says

    It is absolutely correct that rights have expanded, especially for formerly marginalized groups. But when it comes to civil liberties, it is clear that there is now a huge push to curtail them. The government is going to make a big effort to use the Boston bomber case to say that as soon as the label ‘terrorist’ is applied, even Americans in America can be deprived of their rights. The curtailment started with foreigners overseas (we can kill them at will), then it expanded to Americans overseas (we can kill them at will), and now it is happening to Americans here. There was a previous case of Jose Padilla but the government did not get all it wanted there. This case gives them a better opportunity.

  15. hoary puccoon says

    I was referring to the fact that questioning the suspect before reading him his Miranda rights is not violating his rights if the information is barred from being used against him at his trial.

  16. drr1 says

    Not so.

    As a general rule, a suspect must be Mirandized in the event of a custodial interrogation. If authorities fail to do that, then one possible remedy is exclusion of tainted evidence at trial. The remedy doesn’t negate the fact of a rights violation, it is merely that — a remedy. Indeed quite the opposite is true: no remedy can be afforded unless there has been a rights violation.

  17. fastlane says

    I am a fan of old western films and a recurring theme in them was the sheriff who holds at bay angry townspeople who want to mete out summary justice to a prisoner in his jail, because he wants that person to have a fair trial. In those films we rooted for the sheriff but nowadays it seems like we are rooting for the mob.

    These days, the “law enforcers” are the mob…..

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