How Is This Different From Citizens United

The Washington Post writes, and Paul Cassell agrees, that the Administration screwed up by treating Umar Farouk Abdulmutallab (the underwear bomber) as a regular criminal, and should have considered some sort of administrative detention instead.

The analysis seems spot on to me.  I can't for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab.  While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab's interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.

Uh, OK, but the law of the land is to give arrested criminals on US soil Miranda warnings and an attorney.  What legislative authority (I think we are supposed to be a nation of laws) exists to do otherwise?  And if such a law did exist, what would the bright-line rule be that should be written in law so real human beings making arrests know when it is OK and when it is not to kidnap someone to Gitmo?  I have struggled to find anyone who can write such a rule -- it always comes out sounding like the old definition of pornography, "I know it when I see it."  Remember, the Patriot Act was used far more for drug and child porn cases than it ever has been for terrorism -- it is very, very hard to circumscribe new police powers, particularly when police so desperately want to keep and hold those powers.

I don't deny from a utilitarian point of view that being able to grab people off the street and lock them up without trial forever might prevent some terrorism, but wasn't it Conservatives, just the other day, that were arguing re: Citizens United that Constitutional protections can't be waived for utilitarian reasons?  I agreed with them then, what changed here?

  • Mark

    Even if we did decide he should be treated to a civilian trial, the law of the land is not that He needs to be given his Miranda rights and a lawyer.

    The law is that any info gained during interrogation can not be used until the criminal has been read his Miranda rights (unless there is some kind of emergency situation - eg police find an arsonist in the act, and demand to know if he knows if there are people in the building).

  • Joel

    I am fairly sure that the failure to read a suspect his Miranda rights really only invalidates any confession he gives during questioning. With this guy the government had eye witness accounts from several passengers of his actions and anything he might have said right after the attack. They also had all of the physical evidence associated with the crime. It seems like they could have pumped him thoroughly for information without a Miranda warning and been content to have whatever he told them be inadmissible in court, since he could easily be convicted without it.

  • morganovich

    i realize this sounds a little tongue in cheek, but if we deny the rights of citizens upon which our society was established and flourished and adopt totalitarian practices, haven't the terrorists already won?

    it seems to me that inducing us to give up our cherished ideals and way of life does far more damage than bombs ever will.

  • http://thereisnoevidence.com/ Mick Langan

    I believe it should differ for non-citizens and citizens. Citizens should be presumed to have criminal rights that are not lightly abridged. The standard of presumption and proof should be different for non-citizens when in a state of war.

  • mahtso

    Citizen's United is based on the 1st A (Congress shall make no law...), whereas, (to my knowledge) Miranda warnings are not in the Constitution. That is what has changed.

  • Mark

    @morganovich

    So what US citizen would have his or her rights violated if the pantie bomber was tried in a military court, or sent to gitmo?

    Are you forgetting the loss of civil rights/civil liberties for all those who died in 9/11 and in other aircraft bombings? What about them.

  • NormD

    The Constitution is not a suicide pact

    The Patriot Act should only apply to terrorism

    Coyote, you seem to want to live in a world where there are gobs of lawyers around judging every action. Blehhhhh

  • morganovich

    mark-

    that's a foolish argument. it's asymmetrical and taken to it's logical conclusion, utterly absurd. further, rights apply to all those within our borders, not just citizens. a french tourist accused of a crime has all the rights you do, just as you would have all the rights of a frenchman if accused in france.

    having your rights (and those of everyone as a group) violated by the government is different from having your rights violated by an individual. individuals may not legitimately use force against you. government can. this is why our protections from it must be so clearly elucidated and fiercely protected.

    if an individual steals from you or assaults or kills you, sure, he violated the law and possibly you rights (though if you read the bill of rights, you'll see that few rights are person to person). it's a crime for that reason.

    if we feel free to take away the rights of anyone we accuse of violating the law or the rights of another person, then who has any rights at all? imagine the structure you envision applied universally. rights are only rights if you have them when you need them. if we take away the right of those within our borders, whether they be american or no, we emulate the totalitarian states we purport to oppose. you seem to want to protect your freedom by acting like a dictator.

    your notions of utilitarianism swamping rights are exactly how good intentions lead to a loss of freedom. sometimes giving people rights will lead to outcomes you don't like. bad things will happen. that's life. but it's a far lesser evil than giving them up and living under authoritarian government.

    oh, and nice one on "going 9/11". that's a cheap rhetorical argument equivalent to calling someone hitler.

    i knew lots of people in those buildings. honoring their memory by taking away freedom is as absurd as using their tragedy to score emotional points is classless.

  • http://www.sierranevadaairstreams.org/whispers/ Bryan

    It does not pay to over simplify when describing law - the risk is that of reduction to the absurd. There is civilian law and military law and both have long history and precedent. They should not be confused.

    As for your clear line: When a foreign national engages in activities that have been determined as military matters, then military law should be considered primary. Terrorist activity, that is acts intended to terrorize the public rather than to serve some personal gain, has been deemed a military issue.

    When a terrorist airplane bomber caught in the act is compared as equivalent to a citizen of the country picked up off the streets and basic matters of law and history are ignored, the debate has degraded to dishonest levels. What you say in this post doesn't exist indeed does and the lines you claim are not visible do indeed have distinguishing characteristics.

  • mahtso

    "Mark:
    @morganovich

    So what US citizen would have his or her rights violated if the pantie bomber was tried in a military court, or sent to gitmo?"

    Morganovich, Maybe I missed it, but did you answer this question?

  • morganovich

    mahtso-

    the answer is "all of us". establishing special categories of crimes (terrorism, hate crime, sex crime, whatever) and abridging the rights of those so accused harms us all.

    we all lose our rights.

    freedom comes with risks.

    i'd rather take them and be free than live in fear of summary extra-judicial justice.

    rights that can be ignored when convenient are not rights at all. losing them to prevent a few bad outcomes (and what's so wrong with this guy being tried in a federal court?) isn't worth it. the cure is worse than the disease.

    police would get more confessions if they were allowed to beat them out of "known gang members" or "known perpetrators". shall we allow that too? it will doubtless stop some bad outcomes, and hey, they're just gangbangers...

  • anon

    Warren,

    I think this is a non-issue. The cops don't have to give you, an US citizen arrested in the USA, your Miranda warning. If they don't, then it will be very tough to admit anything you say into evidence (i.e., there are non-important exceptions). They do have to (eventually) give you a lawyer.

    But that's not the point -- the point being argued is that they should have delayed trying to get admissible evidence until after they got all the available intel.

    I'm not going into the merits of that strategic decision.

    But the bottom line is that we all agree you both (you and panties-bomber) get your Miranda rights read to you before any confession or other statement would be admissible in court.

  • ed

    I think anon is correct.

    We do not have a fundamental right to a Miranda warning. Rather, we have a right to not have any incriminating statements used against us if we gave them without a Miranda warning.

    Since a confession in this case would be superfluous in light of all the other evidence, it might have made more sense to continue the questioning.

    I applaud your respect for the rule of law, but I think you are wrong on this one.

  • Joel

    I agree with anon and ed,

    Miranda rights are not the same as free speech rights or the right not to be beaten by police. They are a legal fiction that governs admissibility of confessional evidence. If the government is willing to pay the price in lost evidence, it should be able to interrogate without mirandizing someone. Further, I could envision a situation where there was no other evidence and the government was willing to let a suspect walk if aggressive questioning without a lawyer gave them an inadmissible confession that allowed them to immediately save lives.

    It is not like letting this guy go would be a big deal. With high profile suspects like this bomber or KSM, what do you think would happen if they were released in front of the prison at a set time on a set day with a public announcement?

  • Dr. T

    "...what changed here?"

    How about the fact that he committed a crime in international airspace and not in the USA, and the fact that he is not a US citizen or resident. This type of crime can be handled under the old maritime laws, and his attempt to blow up the jet is similar to an attempted act of piracy on the seas. Handling such crimes does not require us to follow Constitutional rules. We just have to follow international standards (that do not include Miranda warnings).

  • http://thebastidge.blogspot.com Thebastidge

    Dr. T has the right of it. This guy is NOT a citizen. He was NOT apprehended by US Law Enforcement on United States soil. He was handed over to US Law Enforcement upon arrival, but was actually apprehended by civilians who were protecting their own lives.

    He should be considered potentially either

    A: a pirate, or
    B: an unlawful combatant.

    So far the evidence is pretty overwhelming that he is indeed an unlawful combatant. In any case, both of these categories are subject to summary execution by a panel of 3 military officers upon determining his status, not subject to courtroom rules of evidence, but merely finding of fact.

  • morganovich

    dt-

    he tried to set off the explosion as the plane was landing in Detroit.

    it was not in international airspace.

  • anon

    Sorry, Dr. T and Thebastidge.

    The 5th Amendment self-incrimination portion is directed to persons, not citizens. The Constitution makes the distinction in several places.

    In short, non-citizens get 5th Amendment rights in the USA -- and therefore, Miranda rights.

    I'm not sure he committed a crime in international airspace -- they were on their approach to Detroit, right? In any event, he's certainly being held and questioned in the USA, so he gets USA rights.

  • Highway

    I completely loathe the line of reasoning that people don't get rights, which are actually all the negative things that US government can't do, because they're not citizens of the US. If something is heinous enough to not be done to US citizens, then how can it be justified when done to other people in the world? What do the rights of US citizens mean when the same government is ignoring those same rights abroad?

    The 5th amendment says "No person". Not "No Citizen" or any other qualifier. "No Person". There's no special pass because they were outside an imaginary line.

  • Highway

    aka, the same thing anon said...

  • D-man

    "In short, non-citizens get 5th Amendment rights in the USA — and therefore, Miranda rights."

    So what happens if some foreign army lands a few armored divisions on some coasts of Hawaii? (I'm thinking ChiComs.) Do we Mirandize the surviving rapscallions when the shooting finally stops? Does one captured enemy combatant get US civilian rights but thousands don't?

  • astonerii

    The rule would be as follows:

    1) The constitutional protections of individuals are only to be extended to Citizens of the United States of America, Legal Residents of the United States of America and Legal Visitors of the United States of America. (as a constitutional amendment)

    2) Legal Residents and Legal Visitors would be defined in their sections of the law to ensure that they remain legal so long as the reasons for obtaining such status was not through fraudulent reasons, AKA they really asked for a visa in order to commit a terrorist act. (changes to current law)

    This protects the people the Constitution was written to protect, while at the same time ensuring that we have a legal means for which to conduct an asymmetrical war such as we are currently involved in. This new legal means would be debated in congress and passed into law and signed by the president. The military seems to be the best current option for placing these people into custody for trial. The government though could design and create an entirely new judicial system to handle these people if it so chooses.

  • Michael

    If Chavez declared war on the US and sent people to blow up planes and they were caught, they'd be out of uniform enemy combatants. Al Qaeda has declared war on the US. While not a nation, they are a multinational group supported by foreign nations. Their people caught trying to cause harm to people in the US should be treated as out of uniform enemy combatants. Summary execution.

  • Jburns

    The comments above re Miranda are correct -- you can question all you want, just can't use it in court.

    But more importantly, this situation exposes one thing that is really quite amazing about the U.S. Despite two world wars and numerous other conflicts, the amount of military conflict within our borders in the past century has been amazingly limited. As a result, we don't really think about the difference between how we should address "criminal" acts versus acts of war. But the distinction in how they are handled is well established even as to persons who are U.S. citizens engaging in acts on U.S. soil. See Ex Parte Quirin, 317 U.S. 1 (1942). Quirin makes clear that the government can try Abdulmutallab in a military tribunal with the limited rights associated with that forum rather than in the criminal justice system.

    This isn't an argument about making an "exception" to the application of constitutional limitations on the power of the government when it's convenient. This is an argument about which constitutional limitations apply to the government given the circumstances relating to Abdulmutallab.

    Frankly, given recent history, it is an embarassment that the government hasn't gotten its act together enough to set up clear protocols for how these type of individuals should be handled.

  • Ellie Light

    You all have it wrong the panty bomber should be called, as President Obama said, "a Nigerian student". Please get it straight.

  • http://www.hoffmang.com/ Gene Hoffman

    Article. II. Section. 2.

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

    Article IV. Section. 4.

    The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

    When a foreign national attempts to destroy a common carrier transiting internationally to maximum effect over a state, I think that qualifies as "domestic Violence." Just because a lone invader makes it to US soil, it doesn't change the analysis much from that same person attacking a US encampment on foreign soil.

    -Gene

  • Jim Collins

    I seem to remember reading about German saboteurs being caught on Long Island during WWII. I believe that they were tried by a military tribunal and then executed. How is the BVD bomber any different?

  • mahtso

    morganovich wrote: "police would get more confessions if they were allowed to beat them out of “known gang members” or “known perpetrators”. shall we allow that too? it will doubtless stop some bad outcomes, and hey, they’re just gangbangers…"

    From what I can tell, the only people raising the issue of beatings are those using it as a strawman or red herring. Nevertheless, I think one of us is confused, maybe it's me.

    To me the issue is not trying to get a confession, but rather to get intelligence data for use in a war. If you (or others) do not agree that we are at war, then our perspectives are so far apart that there is no point in discussing the matter (other than, perhaps, the issue of whether or not we are in a war).

  • IgotBupkis

    I believe one of the primary elements that is relevant is the rather obvious one: This isn't a US Citizen.

    Another pertinent factor is: We didn't invite him here (i.e., he doesn't have a sponsor/employer or other which is a legal US citizen/entity)

    An additional pertinent factor is: He came here with the explicit intent to do grave harm before he ever set foot on US soil.

    I think it pretty much comes down to the concept of a spy and/or saboteur, which isn't a recent thing and isn't a criminal but an act of war, and generally outside the basic laws of war. Spies and saboteurs are not subject to criminal trials but can be shot by a firing squad after a much shorter and more simple process. I have to ask you a question, therefore, in return -- When did we decide to "forget" this concept existed, and why?

    Oh, and yeah, I'm not amused by the abuse of the PA in the least to go after drug dealers and others, any more than I was amused by the RICO acts being misused for same.

    I do believe that we used to take these rights more lightly than we have in recent years -- cops used to take a lot more leeway in their approach to criminals in the past than they do now -- and I think that's a good thing that we think they should do as they do now -- just as we no longer accept slavery, or even the mistreatment of humans and animals... But people should grasp that modern attention to civil rights is much more recent than the country itself.

    > that’s a foolish argument. it’s asymmetrical and taken to it’s logical conclusion, utterly absurd. further, rights apply to all those within our borders, not just citizens. a french tourist accused of a crime has all the rights you do, just as you would have all the rights of a frenchman if accused in france.

    Not at all. It's none of those things. The equivalent rights granted a visitor are more a matter of mutual international agreement than anything required by international law. And again -- the notion of a spy or saboteur is part of that reason. No nation wants to be required to treat a foreigner, who may be a spy, with the same degree of deference they give to their own citizens.

    > if we take away the right of those within our borders, whether they be american or no, we emulate the totalitarian states we purport to oppose.

    No, it's not. There's not a fine line, there, it's a flinkin' damned FENCE. You were born here, or you've gone through a process which was non-trivial to become a citizen of this nation -- By becoming a citizen YOU HAVE YIELDED A PIECE OF YOUR PERSONAL SOVEREIGNTY to the people around you. You are expected to join in the defense of this nation, and its people, against foreign enemies.

    I'm sorry, if the Canadian Hordes come rushing over the borders to attack us, I DO expect all American citizens to take up whatever arms they can to repel them. If there is a French tourist renting the house next door, I don't have the same expectation of him or her. He/she gets to GO HOME if they wish, and there IS international law which says THAT -- even if the Canadian Hordes win and conquer us. Crap happens in war, and being in a war zone isn't a good idea, but nominally you are NOT a part of the nation when a tourist -- even if there is a war going on, you AREN'T supposed to be a target as a foreign national.

    Highway:
    > If something is heinous enough to not be done to US citizens

    See the above. There is a distinction which US citizens explicitly get, and which we tend to grant by extension to foreign nationals, but are not required by common sense to be forced to extend to all others, no matter their behavior or intent. And if they don't like that, then they are welcome to stay home.

    > While not a nation, they are a multinational group supported by foreign nations

    Michael has it correct.

    > I believe that they were tried by a military tribunal and then executed. How is the BVD bomber any different?

    Um, postmodern liberals intent on the destruction of the USA were not a significant force in America at that time?

    .

  • Bill

    The comments regarding miranda warnings are not correct.

    Police have to give you the Miranda warning before questioning you. That is what the 5th Amendment requires.

    In interpreting the 5th Amendment, the Supreme Court reasonably concluded that it might as well not exist if nobody knew about it. Therefore, they held the 5th Amendment requires that people know about it. Therefore, they held that police have to tell people about it. The part about non-miranidzed statements not being admissible in court is the remedy prescribed by the Supreme Court for when happens when the police violate the law. The law in this case is the 5th Amendment of the Consitution of the United State of America and the Supreme Court precedent interpreting it.

    As you know, the Constitution is the supreme law of the land. If you don't like it, you can try to change it through the proper process, or wait until the Supreme Court reconsiders its previous opinions. You, nor anybody else, can ignore it, unless you want to break the law.

  • ADiff

    I think we might need a minor technical correction to a statement that seems to be accepted at face value in this discussion. To wit:

    "While not a nation, they [al qaeda] are a multinational group supported by foreign nations."

    No, not actually. They are an extra-national group, with multinational membership, but are NOT as of the present time formally (and probably even factually) supported by any Nation. Not even pariah states like Iran do ... not even flaky 'outlaw' states like North Korea ... not even disputably recognized miasmic statiods like (so-called) 'Palestine' ...

    No Nation anywhere supports them...as opposed, very likely, to informal and covert groups of individuals who in some cases may be members of the governments of a handful of Nations (i.e. Pakistan, Iran, Lebanon, Syria for example)....

    Just wanted to try to be as accurate as possible....

  • JBurns

    Bill, you are incorrect. The 5th Amendment protects the right against self-incrimination. As such, if the statement is not used to convict, there is no violation. That's why, for example, the prohibition doesn't apply to the use of non-Mirandized stagements for impeachment even in criminal cases, doesn't apply at all in civil cases (refusing to speak can create a negative inference), and doesn't apply if immunity is granted (refusing to speak under subpoena after receiving immunity can result in a contempt ruling).

    And Quinin is the case affirming the use of military tribunals in WWII to try US citizens for acts on US soil.

  • mahtso

    The Miranda Case states: "Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination….

    The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way."

    Based on the above (the issue for resolution is key), there is no right to a warning, only the right to have statements made without a warning excluded. So, again, because there is a right to free speech, that is why this issue differs from Citizens United.

  • me

    Honestly - if following your next trip, the friendly TSA arrests you coming out of the plane, puts you into shackles and has you stuck away because of being a terrorist, wouldn't you, you know, like the option to stand up in a court of law and point out that you have done nothing and that there is no shred of evidence against you? That's due process.

    In this case, there was plenty of evidence, both physical and in the form of eyewitnesses. Is there any doubt that the guy won't end up being convicted in a court of law because our legal system is too weak? Not in my mind.

    This is a strawman discussion; the real problem here is not that we're treating 'known enemy combatants' too leniently, the real problem is that we're starting to treat "terrorists" unconstitutionally *based on say-so*. Yes, it's the government doing the saying, and it would be nice if it was infallible. Sadly, there's ample evidence that they keep getting things wrong.

    But Miranda rights aren't the worst of it. Certain people in Washington granted themselves the right to assassinate even US Citizens they believe to be known terrorists. No double checks, no due process, just an unexpected bullet in your back. Miranda rights pale by comparison.

    Go read this to be disgusted in detail.

    To be clear - this is not folks who are convicted by a court in their absence and sentenced to death. This is folks who someone who thought that might be a good idea put on a list. I shudder to think what'll happen once that list gets long enough to contain spelling mistakes and names that more than one person shares. "Oh, wrong Paul Jones? Sorry, Ms Widow, how could we have possibly known?"

  • http://thebastidge.blogspot.com thebastidge

    To the commenter above, RE: rights of a Frenchman.

    You absolutely do not have the rights of a Frenchman while in France. In most countries it is explicit that foreigners do not have the same rights as citizens, and the remainder largely content themselves with it being so blindingly obvious as to not need explanation.

  • Michael Miller

    Sorry, came to this late. I see this as a jurisdictional matter. If the this person is going to be arraigned in a civilian court by all means he must be read his rights. Foreign national or not. This is the law of the land.

    If he were initially determined to be an enemy combatant, to be later tried before a military tribunal, I am not sure that the reading of his rights would have been necessary, especially if he is a foreign national. But as he had been apprehended by domestic law enforcement best to be safe and read him his rights, every time. In this situation I think it best that law enforcement maintain consistency in their behavior.

    Personally, in this particular situation I believe that he should have been read his rights by civilian law enforcement, and that when it was determined that he was an agent of Al Qaeda, and an enemy combatant, that he should have been handed over to the military authorities for proper interrogation. Then a decision should have been reached as to how he would have been prosecuted. There were several options open. He could have been tried in a military tribunal, or in a civilian court.

    In my opinion the mistake here was that he was not designated as an enemy combatant, and handed over to the military for proper interrogation. Declared or not, we are in a state of war with Al Qaeda.

    And as he was on US soil, I have no problem with reading him his rights, and I believe that part was handled correctly.

  • enoughalready

    This section from a recent Charles (Warmonger) Krauthammer essay:

    "Lieberman and Sen. Susan Collins had written an earlier letter asking for Abdulmutallab to be turned over to the military for renewed interrogation. The problem is, it's hard to see how that decision gets reversed. Once you've read a man Miranda rights, what do you say? We are idiots? On second thought . . .

    Hence the agitation over the KSM trial. This one can be reversed, and it's a good surrogate for this administration's insistence upon criminalizing -- and therefore trivializing -- a war on terror that has now struck three times in one year within the United States, twice with effect (the Arkansas killer and the Fort Hood shooter) and once with a shockingly near miss (Abdulmutallab).

    On the KSM civilian trial, sentiment is widespread [ed. note: except here] that it is quite insane to spend $200 million a year to give the killer of 3,000 innocents the largest propaganda platform on earth, while at the same time granting civilian rights of cross-examination and discovery that risk betraying U.S. intelligence sources and methods.

    Accordingly, Sen. Lindsey Graham and Rep. Frank Wolf have gone beyond appeals to the administration and are planning to introduce a bill to block funding for the trial. It's an important measure. It makes flesh an otherwise abstract issue -- should terrorists be treated as enemy combatants or criminal defendants? The vote will force members of Congress to declare themselves. There will be no hiding from the question.

    Congress may not be able to roll back the Abdulmutallab travesty. But there will be future Abdulmutallabs. By cutting off funding for the KSM trial, Congress can send Obama a clear message: The Constitution is neither a safety net for illegal enemy combatants nor a suicide pact for us."

    Look here's a chance for all of you to certify your libertarian membership cards. Get the email and phones of your Congress people and send them impassioned pleas to defeat this bill. After all, denying KSM his civilian trial will make us... just like them! Bwahahahaha!

  • IgotBupkis

    The following quotation/commentart seems relevant. Full test, a commentary about the purposes of Intelligence vs. Law Enforcement, etc, here.

    In the constitutional license given to executive action, a gaping chasm exists between the realms of law enforcement and national security. In law enforcement, as former U.S. Attorney General William P. Barr explained in congressional testimony last October, government seeks to discipline an errant member of the body politic who has allegedly violated its rules. That member, who may be a citizen, an immigrant with lawful status, or even, in certain situations, an illegal alien, is vested with rights and protections under the U.S. Constitution. Courts are imposed as a bulwark against suspect executive action; presumptions exist in favor of privacy and innocence; and defendants and other subjects of investigation enjoy the assistance of counsel, whose basic job is to thwart government efforts to obtain information. The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights.

    Not so the realm of national security, where government confronts a host of sovereign states and sub-national entities (particularly terrorist organizations) claiming the right to use force. Here the executive is not enforcing American law against a suspected criminal but exercising national-defense powers to protect against external threats. Foreign hostile operatives acting from without and within are not vested with rights under the American Constitution. The galvanizing national concern in this realm is to defeat the enemy, and as Barr puts it, "preserve the very foundation of all our civil liberties." The line drawn here is that government cannot be permitted to fail.

    Me:
    > Honestly – if following your next trip, the friendly TSA arrests you coming out of the plane, puts you into shackles and has you stuck away because of being a terrorist, wouldn’t you, you know, like the option to stand up in a court of law and point out that you have done nothing and that there is no shred of evidence against you? That’s due process.

    Yes, and I'd expect it, as an American citizen. I would not presume the same if I were going into another country, entering THAT country as a "Foreign National"... That's one reason there are countries I would not visit.

    The presumption here seems to be that these people exist and do what they do just for the heck of it -- that their entire purpose is, in fact, to hassle people without cause or reason. That they do this to some extent is much more dunderheaded bureacratic stupidity than it is malice. In other words, you assume that they're going to pick some random citizen up for the Gitmo holiday just for the sake of picking someone up -- evidence doesn't matter, they aren't actually out to GET terrorists, just to LOOK like they've gotten terrorists.

    While such is certainly possible, it's generally something that adequate safeguards ARE applicable, and, in the aftermath of some event, when there IS pressure to appear to be doing something, yes, it's a good idea to be scrutinizing their actions more seriously. The purpose behind such actions, though, IS to get intelligence -- always -- not to give the "sadistic interrogators at Gitmo" a Real Good Time.

    Methinks your view of intelligence operatives has been warped by too much reliance on episodes of M*A*S*H and George Clooney movies.

  • Esteban

    Overall, I like the blog but there is a lot of silliness.

    "And if such a law did exist, what would the bright-line rule be that should be written in law so real human beings making arrests know when it is OK and when it is not to kidnap someone to Gitmo?"

    You really think it's impossible to find a "bright-line" that can differentiate between grabbing "people off the street" in order to "lock them up without trial forever" and detaining a foreign national who was armed and equipped abroad and entering the country to kill as many Americans as possible? Really?

    Yeah, that's a real stumper, that one.

    Then there's this:

    "dt-

    he tried to set off the explosion as the plane was landing in Detroit.

    it was not in international airspace."

    Uhh, what does that have to do with anything? The Pearl Harbor attack in occurred in US airspace. An attack on the US by necessity has to happen within US territory. It does not change the fact that both Pearl Harbor and the Christmas day bombing were attacks by foreign nationals originating abroad.

    So, by this logic the IJN officer who was captured on a Hawaiian beach after his midget sub sank should have been mirandized and taken into law enforcement country. We screwed up because he sailed through the Golden Gate with "POW #1" stenciled on his shirt, in military custody.

    "Uh, OK, but the law of the land is to give arrested criminals on US soil Miranda warnings and an attorney."

    After all, he "touched base," so give the man an attorney.

    Oh, wait, that's right, you believe uniformed combatants following the Hague convention (he didn't know that the Japanese declared war after the attack started) have less rights than illegal combatants deliberately violating the Hague convention.

    Here's a hint, rule-of-law types; that's gutting the Hague and Geneva conventions.

    Look, if you guys want to advertise the fact that you are completely unqualified to discuss national security, please proceed.

    But answer this; if these guys are merely criminals, then why would you need $200 million a year extra for security, and shut down lower Manhatten for years potentially, to try KSM? It's never been necessary for even extra-ordinary criminals. If that's all they are, criminals.

    I've read comments on some legal blogs that blythely state the Mafia is far better at manipulating the legal system the al Qaeda ever could, so any worries about trying KSM or any member of his org. are completely unfounded.

    That just illustrates the blinders these "lawfare" types are wearing. The difference is, the Mafia merely intends to persist here and exploit the system. Al Qaeda and other such groups don't want to just manipulate the system; they wish to destroy it.

    So the answer is, boys and girls, you need to turn Manhatten into a fortress and provide security on a scale never seen for any previous trial is because al Qaeds operatives are not criminals. They are foreign combatants. And no matter how much the administration denies the truth, their actions and the actions of the city of New York demonstrate an acknowledgement of a set of facts they'd rather not talk about.

    You guys have several bizarre interpretations of the Constition. Such as the notion US rights apply to everyone, not just US citizens. So apparently you believe the phrase "provide for the common defense" means giving everyone in the world a lawyer.

  • Esteban

    Forgot to address the author's question:

    "but wasn’t it Conservatives, just the other day, that were arguing re: Citizens United that Constitutional protections can’t be waived for utilitarian reasons? I agreed with them then, what changed here?"

    Well, nothing. The law still says foreign companies do not have First Amendment rights. If you read the ruling, they specifically did not address the question of foreign corporations. They only addressed the question of US corporations. Ergo, the FEC regulations and relevent sections of US Code that prohibit foreign corporations from directly or even through a domestic subsidiary to attempt to influence US politics remain in effect. Denying foreign entities Constitutional rights is Constitutional.

    That's why Alito shook his head and mouthed "that's not true" when Obama lied and said the USSC had opened up US politics to foreign influence during the STFU address.

    Alito was right. That's been all over the news, with even liberal commentators agreeing that Obama was wrong. I'm surprised you didn't hear about it.

    So, it isn't different. Foreign entities, whether individuals or corporations do not have First Amendment rights. They do not automatically have Fifth Amendment rights. Hell, they do not even have Second Amendment rights. Just because you're here legally doesn't mean you can buy a gun. You have to be a permanent resident alien with a green card to buy a gun. Temporary residents can't.

    Tell you what; if you know anyone here on a student or visitor's visa, get him to walk in a gun store and try to buy a gun. See if they let him.

    The long-standing interpretation of the law is that one acquires the protections and rights contained in the Constitution depending upon one's level of attatchment to the US. Hence, a visiting alien does not have the same level of rights as a permanent resident alien.

    And an Abdulmutallab with no ties to the US except attempting to blow up an aircraft in the skies above it has even less claims to rights than a student who's been here for a year, obeying the law.

    The laws are different for citizens and non-citizens. So, to sum up, denying the undiebomber his Fifth Amendment rights falls right in line with the recent USSC decision denying foreign corps. the same First Amendment rights as US corps.

    You see, demolishing the distinction between citizens and foreign nationals isn't the USSC's job. Apparently it's your job to attempt it, but fortunately your opinions carry no legal weight.

    If there's anything else you're confused about, just ask & I'll try to clear it up for you.

  • me

    I think the situation is a bit more complex than stated in previous posts.

    First, the enemy combatant/no constitutional rights approach has been applied to US citizens.

    Secondly, US law (and, for that matter, the international law of other countries) applies to non-citizens of the countries in which crimes are committed. You don't see many foreign citizens buglarizing the airport stores in La Guardia and getting away with it.

    Thirdly, the constitutions makes a very clear distinction between the rights of citizens and the rights of human beings regardless of citizenship. (Oddly enough, a canadian au-pair still has rights)

    The rights in question here are affirmed to be unalienable to human beings by the constitution that is so shockingly ignored in all of this.

    And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people. It makes sure that people who can demonstrate their innocence aren't punished by the state. There are obvious disadvantages in locking away or murdering people based on an unproven assumption of guilt. Compared to that, the disadvantages of applying the existing justice system are negligible. What rectifies circumventing due process for these individuals on a systemic basis?

  • IgotBupkis

    > First, the enemy combatant/no constitutional rights approach has been applied to US citizens.

    And which I will support you in decrying to the hilt. I believe one of the chief flaws of the Patriot Act is that it does NOT apply only to non-citizens, particularly non-naturalized citizens -- i.e., people born here. Like the RICO stats, it opens itself up to a vast array of abuses, being purportedly for the purpose of getting at terrorists(mobsters), but having such a vague "definition" of such that it could be applied in a lot of other circumstances.

    > Secondly, US law (and, for that matter, the international law of other countries) applies to non-citizens of the countries in which crimes are committed. You don’t see many foreign citizens buglarizing the airport stores in La Guardia and getting away with it.

    Okay, this is a patently ridiculous argument. That the law "applies" to them in a general sense does not mean that EVERY law applies, or in the exact same way. There are a host of laws which do NOT apply -- the rules for legally being allowed to vote, for example, would be a ridiculously obvious one. There are other exceptions, both explicit (the law provides a direct alternative for non-citizens) and implicit (no one has seen fit to make a direct alternative because no one has challenged it, even though it clearly cannot apply -- use of a passport/visa papers in place of a legally required locally-issued ID card, for example).

    > And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people.

    You Just Don't Get It.

    These people are not out to MURDER citizens. The motivation is different. It's not personal gain they seek, it's not an effort to hide some embarrassing fact or other from public scrutiny.

    THEY ARE OUT TO DESTROY THE COUNTRY.

    They are enemies of the body politic, not just someone who happens to get in their way of some other goal.

    Geez, how dense can you be?

    THIS IS WAR, not CRIME.

    Murder pretty much cannot be justified ("self defense" is not murder). Killing in war can be. Ergo -- the actions are not the same, though they are **physically** indistinguishable.

    Solutions appropriate for criminal acts are not necessarily appropriate for acts in war. How is that blatantly and inherently obvious fact not totally "DUH!" to you?

  • IgotBupkis

    > non-citizens, particularly non-naturalized citizens — i.e., people born here.

    Sorry, "ambiguous" -- it should be taken from context that I mean that natural born citizens at the least (and probably any and all citizens, including naturalized ones) should be inherently exempt from any and all exceptions it makes to normal protections given all members of society.

  • Esteban

    You're confused, me. I think there are some things that people haven't explaind to you.

    "And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people. It makes sure that people who can demonstrate their innocence aren’t punished by the state. There are obvious disadvantages in locking away or murdering people based on an unproven assumption of guilt. Compared to that, the disadvantages of applying the existing justice system are negligible. What rectifies circumventing due process for these individuals on a systemic basis?"

    Uhh, let me see, oh yeah . . . national security!

    We do have a perfectly functional civilian justice system for trying cases of ordinary murder, even when it comes to murder by organized crime syndicates. We do not when it comes to terrorism, which is an act of war.

    Civilian courts can not and will not protect national security. Because once you make the absurd decision to try a foreign combatant in a civilian court the rules of discovery are entirely different than in a military tribunal. You have just vested that foreign combatant with all the rights of a US citizen. In a civilian trial, the government must turn over any evidence it has supporting a charge to the accused. That means a civilian attorney without a security clearance. Or, if the accused exercises his right to represent himself himself, to the accused himself. Which really makes no difference because that evidence must be presented in court where it becomes public information.

    The government must then decide whether to withhold discovery to protect national security, thus having the particular charge based on that information thrown out, or turn over intelligence vital to national security to the very people we are trying to keep it from. Not just the defendant, but the enemy organization with combatants in the field.

    It'd be like turning over our "magic" information to a Japanese POW during a public trial at the height of WWII.

    You just don't have that problem in a military court. Because in a military court the evidence is examined by a military lawyer with the requisite security clearance on his client's behalf. The client has no right to represent himself under the rules of courts martial. A military tribunal is under no obligation to turn over information vital to national security to any defendant not cleared for it. They MUST make that information available to defense counsel, but not the defendant. And it does not become public.

    The military system of justice is not a second rate system. It is the system that those who serve the country are subject to. It protects the Constitutional rights of citizens, but unlike the civil system and those on this board who don't know what they are talking about, it does not grant Constitutional rights to non-citizens who don't have them. It is a first rate system of justice, equal to the civil system, but unlike the civil system it also protects national security. And it meets the standard of justice required by the geneva convention.

    "First, the enemy combatant/no constitutional rights approach has been applied to US citizens."

    Yes, it has. For decades at least. One of the German spies captured infiltrating Long Island during WWII was a US citizen. He did appeal to the court, but the court correctly ruled that he was an enemy combatant. Thus subject to the law of war and not US law. Hence, no Consitutional rights despite his status as a US citizen. He was executed by the military.

    "The rights in question here are affirmed to be unalienable to human beings by the constitution that is so shockingly ignored in all of this."

    We're probably ignoring that tidbit because you've got the wrong founding document there, me. It is the Declaration of Independence that declares certain rights inalienable; life, liberty, and the pursuit of happiness.

    The rights enumerated in the Bill of Rights, are the rights of citizens that the government is obligated not to infringe. They do not belong to non-citizens, depending upon there level of attachment to the United States.

    But hey, if you doubt me, if you really believe that the rights "in question", i.e. enumerated in the Constitution, are inalienable to all human beings and not just citizens, then perform my little experiment.

    Ask a friend in the US on a non-immigrant visa (student, tourist, work, etc.) to go in to a gun store to exercise his 2nd Amendment right (a right just as made just as inalienable "to human beings by the constitution" as the 1st, 4th, 5th, or 6th) to buy a gun. Follow him in and watch.

    See what happens. Then come back and report.

    By the way, don't feel bad about confusing the Declaration of Independence with the Constitution. Barack "Constitutional Law Professor" Obama made the same mistake in the STFU address when he said it was the Constitution that states "all men are created equal." And that went through several levels of review before the Prez screwed the pooch on national television. So apparently no one in the administration, from the speechwriter to the top guy, knows the difference.

  • me

    Ah - I am glad we agree on item #1, it was the thing that got me riled up in the first place.

    Item #2 still has me wondering - the law itself specifies in certain circumstances where and how it applies (ie to citizens (in the case of voting as you point out), residents or, well, humans). What is currently happening is that these prescriptions (ie: this is a right the founders assigned as inalienable to all humans) are ignored, which is the thing I object to. So - if the laws prescriptions itself are not a guide to when laws should be applied, how should we make decisions about which laws apply to whom?

    Item #3 - I have quite a few issues with the "It's a war" argument. There is a body of laws that applies in that case as well; the obvious reductio-ad-absurdum argument here is: if we decide to make war on traffic accidents (statistics argue that that would be a worthy cause indeed), would it be appropriate to shoot people involved in an accident on the spot or torture them to find out who's really at fault?

  • me

    Oh, and as a follow up to argument #2 - the supreme court made rather clear that the relevant law here (habeas corpus, due process) applies to non-citizens as spelled out in the constitution:

    "The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. . . . The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court." (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=118&invol=356)

  • Esteban

    me,

    I agree with your last post.

    "The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person WITHIN ITS JURISDICTION the equal protection of the laws.” These provisions are universal in their application, to all persons WITHIN THE TERRITORIAL JURISDICTION . . . "

    As I said, it is a longstanding rule of thumb that one acquires Constitutional protections and rights depending upon one's level of attachment to the United States. A US citizen, resident alien, or alien here on a permanent visa enjoys full rights and protections. An alien here on a non-immigrant visa, somewhat less.

    Your link doesn't work, but I'll take a WAG and say those Chinese aliens had arrived in the US and had developed some kind of connection with the US. It would be perfectly legitimate to say that they could have arrived here illegally, but with the intention of acquiring some sort of connection to the US, as nearly all illegal immigrants do.

    But you CAN NOT acquire that connection by arriving in the United States only because you suffered some sort of failure while attacking it, with no intention of actually arriving here and acquiring that connection.

    In WWII there were two Japanese naval personnel who arrived exactly that way.

    One, a Petty Officer First Class Nishikaichi Shigenori crash landed his plane on the island of Niihau, an island with no communications with the outside world. He lived through the landing, but later during what became known as "The Niihau Incident" had to be killed by local Hawaiians when he, with the help of the only two residents of Japanese descent, one a citizen, on the island who armed themselves and attempted to kill or capture their neighbors.

    Had he lived, would you have said he had Constitutional rights because he was on US soil? Remember; he was only on US soil because he had engine failure following the attack on Pearl Harbor.

    The other case: Ensign Sakamaki Kazuo was commanding a two-man midget sub, launched from a larger fleet boat standing offshore, that failed to enter the harbor because it grounded on a reef. It was shelled by a destroyer which damaged its batteries. It briefly escaped but due to damage they had to abandon the boat and swim ashore. His crewman died and he was found passed out on an Oahu beach.

    Would you have said he had Constitutional rights because he was on US soil? Remember; he was only on US soil because he had engine failure following the attack on Pearl Harbor.

    He was not granted any such rights, by the by. He was our first Japanese POW.

    Adbullmutallab arrived pretty much the same way; he only arrived on US soil because his attack failed. His bomb misfired. He had no intention of ever arriving here, unlike the Chinese nationals your case is referring to.

    Had his plan worked, he never would have landed.

    The only difference among the three examples is that the first two individuals were uniformed members of a foreign enemy. Who had not personally violated the laws of war during the attack, despite how badly their government fumbled the declaration of war. (Nishikaichi, had he lived, could have and undoubtedly would have been charged as a war criminal for his assault on the civilian population of Niihau. But a certain Mr. Ben Kanahele saved us all the trouble be picking the IJN aviator up and bashing the man's brains out against a wall after Nishikaichi shot him in the chest, hip, and groin.)

    If that's the only difference, than according to the laws of war Adbullmutallab is entitled to fewer rights than the above two would have (and in the case of the one survivor, actually did) enjoy.

    Abdullmutallab never had Constitutional rights while living in London, or Yemen, or Nigeria. He didn't have Constitutional rights while in transit in Holland. He didn't have Constitutional rights while over the Atlantic.

    Yet he fails to destroy a plane over Detroit, and you want to give him Constitutional rights and a civil trial.

    You obviously have a death wish, me. I don't. But understand this; there is nothing you can point to that says the Constitution somehow requires that.

    You're going beyond any USSC ruling, even Boumediene v. Bush. Yes, the USSC ruled (unconstitutionally, because all warmaking powers lie in the executive branch & not the judiciary) that the detainees at GITMO had the constitutional right to petition the court for a writ of habeas corpus. But only to review the evidence that the government used to classify them as enemy combatants, so the court could decide if the evidence supported that classification.

    If they ARE correctly classified as enemy combatants then they have no Constitutional rights. Despite the fact the USSC used the word "universal" when talking about rights applying even to Chinese aliens residing in the US.

    OK?

    Enemy combatants = NO Constitutional rights.

    They can lawfully be held under the laws of war. Even the current USSC agrees.

  • me

    @Esteban

    I fully agree with your points, I found them rather well argued and the cases you point out are clear-cut.

    There is, of course, the problem of identifying enemy combatants correctly. Drawing the distinction between combatants and non-combatants simply elevates the problem one level: if you're charged with being an enemy combatant, how do you prove that you aren't one?

  • Esteban

    me,

    Article 5 of The 3rd Geneva convention provides that: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

    The US military has an instruction detailing what comprises a competent tribunal, what its procedures must be, what evidence it must consider, etc.

    It is AR-190-B/OPNAVINST 3461.6/AFJI 31-304/MCO 3461.1 (depending on whether you're in the Army, Navy, Air Force, or Marines)

    You can link to it here:

    http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf

    These tribunals can make several possible determinations; that the individual is an enemy prisoner of war (EPW), that the individual is a member of the enemy's medical or chaplain's corp who may be retained but can not be considered a prisoner (RP or retained Personnel), that the person is a civilian internee who is detained for security reasons or for protection or because he's committed an offense (CI), or an innocent civilian who should be released.

    The tribunal can also determine the individual is not entitled to EPW status, but the only thing further the it has to say on their treatment is:

    "Persons who have been determined by a competent tribunal
    not to be entitled to prisoner of war status may not be executed,
    imprisoned, or otherwise penalized without further proceedings to
    determine what acts they have committed and what penalty should
    be imposed. The record of every Tribunal proceeding resulting in a
    determination denying EPW status shall be reviewed for legal sufficiency
    when the record is received at the office of the Staff Judge
    Advocate for the convening authority."

    That's how it has always been done in this country, in any case, until the USSC's horrible Boumediene decision. The Constitution gives no role in warmaking to the judiciary. The Congress has a Constitutional role. Determining who is and who is not an enemy combatant is a military function; even the Geneva convention acknowledges that. Therefore it comes under the authority of the President CinC.

    But since the USSC has seen fit to carve out an extra-Constitutional role, and the other branches of government seem all right with it, now detainees can petition the court for a writ of habeas corpus, and let the court review the evidence upon which their status is based.

  • me

    Spot on. This, btw, is the most rational debate on this matter I have read in a while. Thanks.