Friday, May 7


Charles "Merkwürdigeliebe" Krauthammer, "How to Modernize Miranda for the Age of Terror". May 7

AH, yes, the Grand Old Notion that the American Right is competent and effective, despite all evidence pointing the opposite direction, because it talks like John Wayne doing An Evening with Richard Nixon. Brings back a lot of memories.

Leave us note at the beginning that Dr. Krauthammer is the intellectual force behind Bush Derangement Syndrome, a complex set of pathologies he and his colleagues at the Goldberg Flatulence Clinic identified about twenty minutes into Worst Presidency in History. And that's in his (thankfully non-practicing) professional capacity. Gives a little perspective on his amateur Constitutional Law rulings.

[We might, as long as we're at it, ask where, in (another) week dominated by his colleagues flying off the rails over immigrants, non-bombings, and, in perpetuity, The Socialism, Krauthammer's keeping his update on BDS-like manias? I'm sure the clinical world is getting anxious.]
"[Law enforcement] interviewed Mr. Shahzad . . . under the public safety exception to the Miranda rule. . . . He was eventually transported to another location, Mirandized and continued talking."
-- John Pistole, FBI deputy director, May 4

All well and good. But what if Faisal Shahzad, the confessed Times Square bomber, had stopped talking? When you tell someone he has the right to remain silent, there is a distinct possibility that he will remain silent, is there not? And then what?

Good point. We might've had to wait an extra twenty minutes for The Pakistani Taliban, Al-Qaeda in Mesopotamia, or Al-Sharpton in Flatbush to claim credit. No worries, though; if there's one thing this country's still good at it's drumming up blind terror and blinder analysis.
The authorities deserve full credit for capturing Shahzad within 54 hours. Credit is also due them for obtaining information from him by invoking the "public safety" exception to the Miranda rule.

Oh, surely some of the credit goes to the thousands of dedicated bloggers who dropped everything at the merest suggestion the perp was a lone white guy.

Look, what is any of that supposed to mean? Who else would deserve the credit? He was caught, evidently, by standard, detail-oriented police work aided by the sorts of resources we're paying billions in Homeland Security Bucks to maintain. A job well done; the timing was partly due to luck. Appending this stuff to the Right's Jack Bauer fantasies accomplishes exactly nothing. (Okay, it furthers the cause of conflating pissed-off but incompetent homicidal maniacs with The Legion of Doom. So I take that back. It accomplishes less than nothing.)

As for "invoking" the public safety exception to Miranda, they didn't and don't. They may have acted under the exception; Holder said they did, but that was after he'd come under fire because an apprehended criminal, and US citizen, was treated like an apprehended criminal and US citizen. You can question a subject for hours or days without reading his Miranda warning, but at the risk of losing before the bar whatever evidence you obtain. You don't "invoke" the public safety exception to do so; you use that in court as a justification for having done so. Given the timbre of such cases over the past eight years, and the extra-Constitutional powers claimed, or merely grabbed, by the Executive branch, the authorities already operate with something between a reasonable belief and a dead-on certainty that the suspect isn't going anywhere for a decade or more anyway.
But then Shahzad was Mirandized. If he had decided to shut up, it would have denied us valuable information -- everything he is presumably telling us now about Pakistani contacts, training, plans for other possible plots beyond the Times Square attack.

The public safety exception is sometimes called the "ticking time bomb" exception. But what about information regarding bombs not yet ticking but being planned and readied to kill later?

What about the very abuses the Constitutional protections are designed to prevent?

Why is that never part of the equation? Krauthammer's argument applies to any sort of criminal activity. Why not use the public safety exception to ignore Miranda altogether? The possibility for unnamed, unready, and yet unplanned conspiracies is practically infinite, and it's not restricted to "enemy combatants".

This is the worst sort of libertoonian logic wedded to Nixonian politics. It's a simple thing to propose draconian measures when you think they'll be restricted to your enemies. And it's particularly easy when you get to announce that your plan is effective, and you're not required to even suggest how such a thing is worded to assure it's only little brown men who get the pike.

John McCain's been in Congress since before 9/11. Joe Lieberman, too (have I thanked you lately, Connecticut?). Where's the Constitutional amendment? Where's the legislation from the Homeland Security committee? This is another goddam Flag Burning amendment, something designed to swing at, miss, and let the bat fly out of your hands and hit a Democrat with. How did an entire party turn into ratfuckers?
In this case, however, Miranda warnings were superfluous. Shahzad had confessed to the car-bombing attempt while being interrogated under the public safety exception. That's admissible evidence.

Seven-hundred-fifty words on Constitutional law from "the most important conservative columnist" and he's never heard of a confession being ruled inadmissible, over Miranda or anything else? Have I thanked you lately, Washington Post?
Second, even assuming that by not Mirandizing him we might have jeopardized our chances of getting some convictions -- so what?

Yeah, I'm sure all those members of the Senate appropriations subcommittee would've leapt in unison to Eric Holder's defense.
Which is more important: (a) gaining, a year or two hence, the conviction of a pigeon -- the last and now least important link in this terror chain -- whom we could surely lock up on explosives and weapons charges, or (b) preventing future terror attacks on Americans by learning from Shahzad what he might know about terror plots in Pakistan and sleeper cells in the United States?

Wait. Do either of those options come with "Locking up Charles Krauthammer for the public good"? Or pie?
But let's assume you're wedded to the civilian law-enforcement model, as is the Obama administration.

That's the same Obama administration which has escalated the Afghan war and spread it into Pakistan in search of these guys, right? Yeah, total wimps.
At least make an attempt to expand the public safety exception to Miranda in a way that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case.

I've got a better idea. Why not use the existing Constitution (you know, the one you guys are always going on about how the Original Intent of the Founders is the only proper way to interpret it?) and simply make the War on Terra a declared war? Then you could treat them as civilians in violation of International Humanitarian Law, and they'd be subject to criminal prosecution under the domestic laws of the United States.

Oh. Never mind.


Sator Arepo said...

"...that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case."

Oh oh oh, I get it. He's a legal scholar! Before he cited this one case (and made up a context for it) I thought he was just some blazing idiot.

DocAmazing said...

I'm always amused by the assertion that all crimes committed by white guys are the acts of lone nuts while crimes committed by Swarthy Auslanders are the result of conspiracies.

lawguy said...

No we can't have the congress declaring War we can only be at "war" in perpetuity. You do understand the difference don't you. Everything we have ever experienced before pales into insignificance compared to the existential horror we now face.

Thank you, I will now change my pants.

Christopher said...

Yes, if we tell people their rights they will know they have them.

Other things that might have tipped Shahzad off to his rights which should probably be outlawed for the public good include reading the constitution and watching any cop show that has ever aired in America.

scripto said...

"How did an entire party turn into ratfuckers?"

It wasn't magic. It took a lot of hard work by a lot of tiny tricky dickies.

zombie rotten mcdonald said...

pfft. So now they seem to be getting some traction in tearing down Social Security, the front line is looking at repealing Miranda.

What else is new, right? Authoritarians have always hated it.

Dr. Harl Delos said...

Miranda doesn't make sense in the first place. If cops are violating people's rights, the proper thing to do would be to prosecute the cops for violating people's rights, but for some reason, we seem to assume that cops shouldn't have to follow the law.

In any case, it occurs to me that introducing a confession against the defendant's objections is making the defendant testify against himself which, gee, isn't that a violation of Amendment V?

But there is no political party for those who think the constitution is a fairly well-designed document, and would like to see how well it works in action. There's just the GOP, formerly known as the John Birch Society, which loves ONLY the 2nd Amendment, and the Democrats, who aren't really a party (in the sense of a group with a coherent ideology) but rather a coalition of interest groups.

And I'd point out that Obama is a conservative and Dubya was a liberal, except there are these black helicopters hovering above my house, and I really cannot afford to replace the front door if jackbooted thugs were to knock it down.

loretta said...

So far, our terr-ists are too dumb to effectively detonate a bomb and are too dumb to shut up when caught.

Anybody who watches TV knows to shut up when caught or invoke their rights. Thousands of cop shows, FBI shows and Law & Order shows will tell you that. Who said this guy didn't know better than to talk? Mirandizing him or not, he always had the right to remain silent. I wish he would have. Then what would Kraut have said - he did't talk so we should have tortured him?!

jaye said...

The only reason anyone knows their rights is because Miranda forced the cop television shows to tell people their rights. It is actually quite beautiful this democratic society. Before the rat fuckers fuck it.

I hate how those people reduce me to saying rat fuckers. Remember Deep Throat saying, "in my day, it was simply known as the double cross."


The moment the cops say, "can we speak to you," lawyer up, my friend. This caution was not actually offered as legal advice nor should it be taken as such. Of course they are going to ask you for your fucking papers. And I am not kidding you. It is happening already.

Ratfuckers. Commie, Nazi ratfucking ratfuckers.

loretta said...

Speaking of cop television shows, I spent a few weeks watching the first few seasons of "Criminal Minds" (it's on its 5th season currently)and the unconstitutional crap that these fictional characters do is just amazing. There's also this ridiculous person named "Garcia", some reformed antisocial fat blonde geek, who can analyze data, compare data, and find anything about anyone in about 30 seconds. F-ing ridiculous.

First off, half of what she's doing is illegal, requires a warrant or is not even possible; and the other half doesn't even exist in her realm of databases.

If the FBI had the kind of power that Garcia's little computer room had, there would be no need for Homeland Security.

Anyway, I noticed in later seasons that she does not do quite as many unconstitutional, overtly illegal acts. But to show people as entertainment that the FBI has this capability (which it does not), or that it's ok to do it because the guy is a suspected rapist/serial killer/kidnapper is obscene.

satch said...

loretta: You'll notice the same thing if you watch any of the NCIS franchise. I particularly love it when they get suspects (who, by the way, are ALWAYS guilty) to crack by threatening them with a trip to Guantanamo. For that reason alone, Gitmo should be kept open forever.

Aaron said...

Miranda doesn't make sense in the first place. If cops are violating people's rights, the proper thing to do would be to prosecute the cops for violating people's rights, but for some reason, we seem to assume that cops shouldn't have to follow the law.

You can file a civil rights complaint against the cops when they violate your rights; Miranda doesn't really get into that, but you can. Happens all the time. Not often successfully, I admit; but the avenue is there.

Miranda provides a consequence for the police acting in violation of your civil rights: the evidence they obtain can't be used in court to convict you of a crime. Since, obviously, a post-conviction suit for the violation of your civil rights provides cold comfort if you're already in prison as a result of said violation.

Marion in Savannah said...

How did an entire party turn into ratfuckers?

Two words -- Newt Gingrich.

Dr. Harl Delos said...

Miranda provides a consequence for the police acting in violation of your civil rights: the evidence they obtain can't be used in court to convict you of a crime.

And that hurts the cop how?