Earlier this week, GOP Senate nominee for Kentucky Rand Paul stated on Rachel Maddow's show that he does not support the 1964 Civil Rights Act because he doesn't believe that the government has the constitutional authority to tell businesses that they can't discriminate. Paul says he's not a racist, and I'll take him at his word, but Time magazine notes:
Paul has lately said he would not leave abortion to the states, he doesn't believe in legalizing drugs like marijuana and cocaine, he'd support federal drug laws, he'd vote to support Kentucky's coal interests and he'd be tough on national security.
So, according to Paul, the federal government has authority to nationally ban abortion, ban drugs (and support invasive police actions to deter drug use), and support local business interests, but does not have the power to tell businesses engaging in interstate commerce that they can't discriminate by race. Interesting to see where he draws his lines...
Friday, May 21, 2010
Monday, May 17, 2010
More on Miranda rights and terrorism
A friend writes regarding my post this past weekend on Miranda rights and terror suspects. My response is interwoven with his comments:
I disagree with your Miranda post.
As a preliminary matter, you vastly underestimate the degree to which injecting a lawyer into an interrogation changes its dynamics. First, a lawyer's first instruction to his or her client--even if the lawyer plans to advise the client to cooperate--is to stop talking. Generally, the lawyer will then sit down with the client, figure out how much information the client has, in order to then plan a negotiating/proffer session with prosecutors. This wastes valuable time, and it tends to make any proffered information less valuable. This is a critical point, and indeed there is already an exception to the Miranda rule for public safety.
Second, giving a lawyer to a suspect inherently changes the power dynamics of the situation. All of a sudden, the suspect feels less vulnerable, more powerful, and this perhaps makes him less likely to volunteer helpful information about other terrorists. This second point is part of what Miranda is supposed to prevent. But, in this type of situation, Miranda is over inclusive. Miranda's purpose, as you mention in your post, is to protect against coerced confessions. By completely changing the power dynamic of an interrogation, however, it not only tends to prevent inculpatory statements, it also prevents law enforcement from quickly obtaining information that might lead to the apprehension of other terrorists.
I think that this overstating the degree to which timeliness is critical in these cases. Sure, in some cases, we're going to want information immediately in the proverbial "ticking time bomb" situation, or to try to roll up a terrorist network before it gets wind of an arrest. We've already got the public safety exception to Miranda for that. Beyond those situations, I don't see a need for expanding the public safety exception for terrorists, because a decent attorney is also going to know that there's a limited shelf-life to the defendant's useful information, and push for quick disclosure lest the information become stale and worthless as a bargaining chip.
Unfortunately, over time Miranda has come to be perceived as a good in itself--a shibboleth of sorts. But remember that Miranda is only a prophylactic rule for judicial efficiency. Prior to Miranda, court's had too much difficultly determining whether a particular inculpatory statement was truly voluntary. So, for the sake of efficiency, the Supreme Court came up with Miranda: Unless a suspect is informed of his or her rights, courts will presume that the statement was coerced. Obviously, investigators can elicit information from suspects without the interrogation necessarily being coercive. Furthermore, even without the Miranda rule, courts would continue to engage in a case-by-case analysis of whether a particular inculpatory statement was truly voluntary or whether it was coerced.
Looking at my post, I see that I've made the mistake of conflating Miranda with the substantive underlying rights - which is something that I've criticized of others in the past. My point was not so much to idolize the Miranda warning itself, but to try to push back against erosions of the 5th and 6th amendment protections for defendants, which I think are the actual targets when people complain about Miranda. I've read that the Miranda warnings themselves have been empirically shown to not be terribly useful, because anybody who actually understands the underlying rights asks for those rights anyway ("I wanna see my lawyer"), and people who don't understand that they have a real right not to incriminate themselves or a right to ask for an attorney typically don't internalize those rights from the brief speech read off the back of a card from a cop's wallet. What is vitally important is that we not coerce confessions or inculpatory statements from the innocent. This is especially critical in terrorism cases, where an inadvertant or coerced (false) inculpatory statement can lead the suspect, particularly if he is not a citizen, into the legal netherworld of Gitmo, military tribunals, etc.
Therefore, you can see this being a win-win. On the one hand, investigators would be freed from having to read terror suspects their Miranda rights (thus eliminating the risk that the suspect will clam up, wasting valuable time), but, on the other hand, courts would continue making case-by-case determinations about the admissibility of particular inculpatory statements, protecting the terror suspect from improper coercive measures.
Finally, and most important perhaps, there's the political point. Unless us liberals can show that the criminal justice system is flexible enough to handle terror suspects and successfully (but not coercively) elicit information from them about other terrorists, we will continue to be beaten by the radicals, like Giuliani and Cheney, who want terror suspects--including American citizens--declared enemy combatants and water-boarded. So, ultimately, if the public safety exception to the Miranda rule needs to expanded (with legislative approval) in order to save the public's perception that the judicial system can handle terror suspects, I think that's the proper course.
I disagree with this. I think that the most important part for liberals to stand firm on is the empirically correct point that our existing institutions, when properly utilized, are in fact better at detecting, preventing, prosecuting and punishing terrorists than the militarization, torture and disregard for civil liberties advocated by the right. When we waver on this point, as Holder (and by extension Obama) seem to be doing by advocating a roll-back of Miranda, we give credence to the argument that the rule of law and the fight against global terrorism are incompatible.
Saturday, May 15, 2010
Revising Miranda
I don't really understand the reasoning behind AG Holder's suggestion that there need to be exceptions to the Miranda regime for terror suspects:
“We’re now dealing with international terrorists,” he said, “and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.”
Police investigating regular crimes (drug gangs, the mafia, etc.) and federal agents investigating terrorism are looking for the same two things when they question a suspect 1.) a confession that the suspect did it, and 2.) information about other people involved or other ongoing plots.
These two pieces of information have very different effects for a suspect who is in fact guilty. Giving the confession is bad for the suspect, because it will land him in prison. However, giving information about other plotters is good, because it can perhaps lead to immunity or a reduced sentence for cooperation.
Miranda rights also effect these two types of information differently - the right to remain silent comes out of the 5th amendment right to not have to incriminate yourself. If you know something about other bad guys (so long as your knowledge doens't incriminate you) you don't have any right to be silent as to that knowledge. The right to an attorney during questioning really just heightens the right to be silent - your attorney will probably tell you not to incriminate yourself, but will probably tell you to rat out your co-conspirators so that you can save yourself.
One conception of terrorists is that they're totally irrational (or at least totally disinterested in their own survival or wellbeing compared to their mission to kill/terrify Americans). If that's the case, then no amount of wheedling, deal-cutting, etc. is going to get information out of them, with or without a lawyer and with or without a reminder that they should remain silent. If this conception of terrorists is right, then Miranda rights are at worst pointless for real terrorists, and are important for the cases where an innocent person is suspected.
However, to the extent that some terrorists are self-interested, rational actors who might be interested in saving their own skin, Miranda is still not a problem from a national security standpoint. When Miranda applies, the suspect is already arrested. This means that he's neutralized for the time being, and even if for some reason he's cut loose, it's highly unlikely that any terror cell will take him back for fear that he's become an informant. This means that, for national security purposes, it doesn't really matter if the interrogators get a confession out of him or not - merely arresting him eliminates him for the foreseeable future as a terror threat. Consequently, if, because of Miranda, he doesn't incriminate himself, it's not really a national security loss.
Moreover, for this type of self-interested terrorist, having a lawyer present is going to help national security goals because the lawyer will advise the suspect to rat out his comrades in hope of getting some kind of leniency. Unlike the "mob lawyers", for example, there aren't (as far as I know) "terrorist lawyers" who have some kind of economic integration with Al Qaeda such that they would advise their clients to clam up for the good of the conspiracy. Most terror suspects are represented by legal aid or public defenders who don't have any kind of loyalty to al Qaeda's goals, and will just try to represent their client zealously, which, in criminal law, typically means finding a way to cut the best plea bargain possible with the prosecutors.
Summing it up, this means that in reality, Miranda rights are at worst a non-issue with terror suspects, and in some situations could speed along cooperation with investigators. Miranda is also critical when the suspect is innocent. So I don't really see any reason why they need to be changed, unless the real reason is something more sinister - the government wants to keep lawyers out of the process so that they can continue unsavory interrogation practices like torture and rendition that lawyers would (justifiably) fight.
“We’re now dealing with international terrorists,” he said, “and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.”
Police investigating regular crimes (drug gangs, the mafia, etc.) and federal agents investigating terrorism are looking for the same two things when they question a suspect 1.) a confession that the suspect did it, and 2.) information about other people involved or other ongoing plots.
These two pieces of information have very different effects for a suspect who is in fact guilty. Giving the confession is bad for the suspect, because it will land him in prison. However, giving information about other plotters is good, because it can perhaps lead to immunity or a reduced sentence for cooperation.
Miranda rights also effect these two types of information differently - the right to remain silent comes out of the 5th amendment right to not have to incriminate yourself. If you know something about other bad guys (so long as your knowledge doens't incriminate you) you don't have any right to be silent as to that knowledge. The right to an attorney during questioning really just heightens the right to be silent - your attorney will probably tell you not to incriminate yourself, but will probably tell you to rat out your co-conspirators so that you can save yourself.
One conception of terrorists is that they're totally irrational (or at least totally disinterested in their own survival or wellbeing compared to their mission to kill/terrify Americans). If that's the case, then no amount of wheedling, deal-cutting, etc. is going to get information out of them, with or without a lawyer and with or without a reminder that they should remain silent. If this conception of terrorists is right, then Miranda rights are at worst pointless for real terrorists, and are important for the cases where an innocent person is suspected.
However, to the extent that some terrorists are self-interested, rational actors who might be interested in saving their own skin, Miranda is still not a problem from a national security standpoint. When Miranda applies, the suspect is already arrested. This means that he's neutralized for the time being, and even if for some reason he's cut loose, it's highly unlikely that any terror cell will take him back for fear that he's become an informant. This means that, for national security purposes, it doesn't really matter if the interrogators get a confession out of him or not - merely arresting him eliminates him for the foreseeable future as a terror threat. Consequently, if, because of Miranda, he doesn't incriminate himself, it's not really a national security loss.
Moreover, for this type of self-interested terrorist, having a lawyer present is going to help national security goals because the lawyer will advise the suspect to rat out his comrades in hope of getting some kind of leniency. Unlike the "mob lawyers", for example, there aren't (as far as I know) "terrorist lawyers" who have some kind of economic integration with Al Qaeda such that they would advise their clients to clam up for the good of the conspiracy. Most terror suspects are represented by legal aid or public defenders who don't have any kind of loyalty to al Qaeda's goals, and will just try to represent their client zealously, which, in criminal law, typically means finding a way to cut the best plea bargain possible with the prosecutors.
Summing it up, this means that in reality, Miranda rights are at worst a non-issue with terror suspects, and in some situations could speed along cooperation with investigators. Miranda is also critical when the suspect is innocent. So I don't really see any reason why they need to be changed, unless the real reason is something more sinister - the government wants to keep lawyers out of the process so that they can continue unsavory interrogation practices like torture and rendition that lawyers would (justifiably) fight.
Flag Football and Gender Discrimination
Apparently, in Florida, Flag Football has appeared as a competitive, varsity girl's highschool sport, with five thousand girls playing statewide on 75 teams. One would think that "women's sports experts" would applaud the fact that schools are providing another avenue for students to exercise and bridge one of the few remaining gender divides in sports.
Not so.
Various "experts" quoted in the Times article believe that flag football shouldn't count as a girl's sport under Title IX because there's no opportunity to play in college:
No one is saying flag football isn’t a great sport to play,” said Neena Chaudhry, the senior counsel at the National Women’s Law Center, which has brought several cases against high schools alleging violations of Title IX, the federal law mandating gender equity in education. “But I do think it’s relevant to ask questions about whether girls are getting the same kind of educational opportunities as boys.”
...
Ms. Hogshead-Makar, who also serves as the senior director for advocacy at the Women’s Sports Foundation, said girls missed the educational benefits if they did not take a sport seriously.
“That’s one of the things that makes sports such an important experience,” she said. “You’re always striving to get to that next rung.”
Ms. Hogshead-Makar said flag football’s time should be up. “We’ve had 10 years of girls who have not been given other sports opportunities,” she said.
This is ridiculous. High school sports aren't funded as part of some kind of NCAA farm league. An NCAA study found that only about 5-10% of high school athletes go on to play sports in college. The vast majority of high schoolers that play sports do it for the exercise, the cameraderie, and because they like the game - not because it's a path to a scholarship or because they're "striving to get to that next rung."
While it doesn't have a college level for elite athletes, there are tons of recreational flag and touch football leagues around the country. I play on one in New York, a co-ed league that has nearly 100 teams and sells out every season. That may not be of interest to sports experts, who are probably elite athletes (Hogshead-Makar is a 3 time Olympic medalist in swimming), but for the 90-95% of high school athletes who don't go on to play college sports, flag football is just as good as any other sport.
I understand the concern that schools might be trying to weasel out of the Title IX requirement that they spend money equally on boys and girls sports, but, judging by the article, Florida flag football seems to be a totally bona fide sport - they've got real teams, practices, coaches, statewide playoffs. The complaint here, that Florida doesn't have any varsity boys sports that don't have an NCAA equivalent, is pretty meaningless.
Trying to scuttle a popular program that has kids off the couch, exercising and learning skills that they can use in rec leagues and with their families for the rest of their lives in order to pick a fight about non-existent discrimination is worse than pointless because it undermines attempte to fight real discrimination.
Not so.
Various "experts" quoted in the Times article believe that flag football shouldn't count as a girl's sport under Title IX because there's no opportunity to play in college:
No one is saying flag football isn’t a great sport to play,” said Neena Chaudhry, the senior counsel at the National Women’s Law Center, which has brought several cases against high schools alleging violations of Title IX, the federal law mandating gender equity in education. “But I do think it’s relevant to ask questions about whether girls are getting the same kind of educational opportunities as boys.”
...
Ms. Hogshead-Makar, who also serves as the senior director for advocacy at the Women’s Sports Foundation, said girls missed the educational benefits if they did not take a sport seriously.
“That’s one of the things that makes sports such an important experience,” she said. “You’re always striving to get to that next rung.”
Ms. Hogshead-Makar said flag football’s time should be up. “We’ve had 10 years of girls who have not been given other sports opportunities,” she said.
This is ridiculous. High school sports aren't funded as part of some kind of NCAA farm league. An NCAA study found that only about 5-10% of high school athletes go on to play sports in college. The vast majority of high schoolers that play sports do it for the exercise, the cameraderie, and because they like the game - not because it's a path to a scholarship or because they're "striving to get to that next rung."
While it doesn't have a college level for elite athletes, there are tons of recreational flag and touch football leagues around the country. I play on one in New York, a co-ed league that has nearly 100 teams and sells out every season. That may not be of interest to sports experts, who are probably elite athletes (Hogshead-Makar is a 3 time Olympic medalist in swimming), but for the 90-95% of high school athletes who don't go on to play college sports, flag football is just as good as any other sport.
I understand the concern that schools might be trying to weasel out of the Title IX requirement that they spend money equally on boys and girls sports, but, judging by the article, Florida flag football seems to be a totally bona fide sport - they've got real teams, practices, coaches, statewide playoffs. The complaint here, that Florida doesn't have any varsity boys sports that don't have an NCAA equivalent, is pretty meaningless.
Trying to scuttle a popular program that has kids off the couch, exercising and learning skills that they can use in rec leagues and with their families for the rest of their lives in order to pick a fight about non-existent discrimination is worse than pointless because it undermines attempte to fight real discrimination.
Tuesday, May 11, 2010
An interesting idea
Bryan Caplan suggests separating prisoners (who are already separated by gender) into "weight classes" in order to minimize prison rape.
Monday, May 10, 2010
"Terrorist" vs. "Suspected Terrorist" continued
Building on the earlier post today, this kind of thing drives me nuts-
While complaining about Elena Kagan's decision to deny access to military JAG recruiters at Harvard Law School (because the military violates Harvard's anti-discrimination policy for employers), Ed Whelan of National Review Online says this:
At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.
No Ed, the lawyers donated their legal services to people suspected of being terrorists, not terrorists. That extra word "suspected" makes a big difference. The lawyers I know who have been involved with accused terrorists are doing it to make sure that the government proves that the suspects are in fact terrorists - and not people with the same name as a terrorist, or people who were picked up in a village in Afghanistan that a lot of other terrorists live in, or something like that.
It's easy to think that only actual terrorists get arrested, and that this problem only affects others, and they probably have it coming to them for being involved with terrorists... but that's often not the case.
When I was a senior in college, about 6 months after 9/11, I was coming back from a spring break trip to Italy. Going through passport control, the customs agent stopped me, and started asking a bunch of detailed questions. Apparently I passed, so he let me through. I asked him why I had gotten extra scrutiny, and he told me that apparently there was somebody with my name on a watch list. Now, I have a very anglo name, and I'm white, blonde and unsuspicious-looking enough that tourists regularly stop me for directions in NYC. I can't help thinking what my encounter would have been like at that time if I looked different, or had a different name, or didn't speak English, or was just flustered and couldn't explain myself well. That's why we need to give suspects rights, and lawyers to defend those rights.
While complaining about Elena Kagan's decision to deny access to military JAG recruiters at Harvard Law School (because the military violates Harvard's anti-discrimination policy for employers), Ed Whelan of National Review Online says this:
At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.
No Ed, the lawyers donated their legal services to people suspected of being terrorists, not terrorists. That extra word "suspected" makes a big difference. The lawyers I know who have been involved with accused terrorists are doing it to make sure that the government proves that the suspects are in fact terrorists - and not people with the same name as a terrorist, or people who were picked up in a village in Afghanistan that a lot of other terrorists live in, or something like that.
It's easy to think that only actual terrorists get arrested, and that this problem only affects others, and they probably have it coming to them for being involved with terrorists... but that's often not the case.
When I was a senior in college, about 6 months after 9/11, I was coming back from a spring break trip to Italy. Going through passport control, the customs agent stopped me, and started asking a bunch of detailed questions. Apparently I passed, so he let me through. I asked him why I had gotten extra scrutiny, and he told me that apparently there was somebody with my name on a watch list. Now, I have a very anglo name, and I'm white, blonde and unsuspicious-looking enough that tourists regularly stop me for directions in NYC. I can't help thinking what my encounter would have been like at that time if I looked different, or had a different name, or didn't speak English, or was just flustered and couldn't explain myself well. That's why we need to give suspects rights, and lawyers to defend those rights.
Friday, May 07, 2010
"Terrorism Suspect" does not equal "Terrorist"
Joe Lieberman and Scott Brown are forging ahead with their "Terrorist Expatriation Act":
The Terrorist Expatriation Act, co-sponsored by Senators Joseph I. Lieberman, independent of Connecticut, and Scott Brown, Republican of Massachusetts, would allow the State Department to revoke the citizenship of people who provide support to terrorist groups like Al Qaeda or who attack the United States or its allies.
First thought - ok, this seems somewhat reasonable. You lose your citizenship if you join another country's army (except, oddly, the Israeli Defense Force) so it makes sense that you'd lose your citizenship if you've taken up arms against the US as part of a terrorist organization.
Then I read this part:
The lawmakers said at a news conference that revoking citizenship would block terrorism suspects from using American passports to re-enter the United States and make them eligible for prosecution before a military commission instead of a civilian court.
Whoah, big difference. Stripping citizenship from people who've been convicted in a court of law of aiding terrorists, ok, I can get behind that. But just suspects? Many many problems with that:
The Terrorist Expatriation Act, co-sponsored by Senators Joseph I. Lieberman, independent of Connecticut, and Scott Brown, Republican of Massachusetts, would allow the State Department to revoke the citizenship of people who provide support to terrorist groups like Al Qaeda or who attack the United States or its allies.
First thought - ok, this seems somewhat reasonable. You lose your citizenship if you join another country's army (except, oddly, the Israeli Defense Force) so it makes sense that you'd lose your citizenship if you've taken up arms against the US as part of a terrorist organization.
Then I read this part:
The lawmakers said at a news conference that revoking citizenship would block terrorism suspects from using American passports to re-enter the United States and make them eligible for prosecution before a military commission instead of a civilian court.
Whoah, big difference. Stripping citizenship from people who've been convicted in a court of law of aiding terrorists, ok, I can get behind that. But just suspects? Many many problems with that:
Who decides which suspects get their citizenship stripped? Is it anybody who's "suspected" of terrorism? What if Obama told the State Department that he suspected Scott Brown was a terrorist... is Brown's citizenship gone? This is ridiculously unconstitutional - people have due process rights precisely because we don't trust the executive branch (even if we like the guy currently occupying the office) to just be able to punish people on the basis of suspicion
We have repeatedly gotten the "wrong guys" in terrorism arrests. It's easy to get the right guy when you're arresting the underpants bomber on the plane, but it's a much different thing if you're going after supporters who weren't caught red-handed. For example, according to whitepages.com, there are 151 in New York City alone who share the name "Khalid Mohammed" with the 9/11 plotter. It would suck to be one of them and have gotten swept up by the police when intelligence chatter indicated that a Khalid Mohammed was involved... and then have your citizenship stripped because you're now a suspect.
Just this week, journalists mixed up the Facebook profiles of Times Square bomber Faisal Shahzad with another Faisal Shahzad, focusing national attention on the innocent Faisal. This is another reason that, before the government takes harsh actions like removing somebody's citizenship, you have the full protection and inquiry of a trial to make sure that the government proves, beyond reasonable doubt, that suspect is in fact guilty of the crime charged.
This wouldn't even help terrorism prosecutions or intelligence collecting. If we've caught a terrorism suspect, he's locked up - he's not using an American passport to go anywhere. Moreover, even if a suspect's citizenship was stripped, the bill of rights generally applies to anybody in the US - citizen or not (that's why, for instance, even undocumented immigrants get provided a lawyer at trial - because the Constitution still applies to them). It's not at all clear that stripping citizenship would be anything more than a punitive measure.
In this country, we have due process for people suspected of comitting crimes because, now and again, the suspect is not in fact the person who committed the crime. Lieberman and Brown, and many other folks, in fear of terrorist attacks, are forgetting this - terrorism suspects are not always terrorists. The reason we have trials and such is to separate out the innocent from the actual terrorists.
Wednesday, May 05, 2010
Miranda "rights" for terror suspects
Following the attempted car-bombing in Times Square (a few blocks from where I work), despite the fact that law enforcement tracked down and arrested the guy within two days, and he's already confessed, you have the predictable overreacting freakout by the right.
As happened with the underpants bomber in December, the freakout has centered around what a terrible idea it was for the police to read the suspect a Miranda warning. John McCain said that "It would have been a serious mistake to have read the suspect in the attempted Times Square car bombing his Miranda rights" and Joe Lieberman is talking about getting around having to read the Miranda warning by stripping suspects of their citizenship and shipping them to Gitmo (which frankly is too insane for me to even discuss, but Matt Yglesias explains why it's ridiculous here).
Here's why this is unutterably stupid. When police read a suspect the Miranda warning, they are not conferring any rights on the suspect. All they are doing is advising the suspect that he has rights that are already conferred automatically by the constitution. The 5th amendment automatically provides a right to remain silent and not incriminate yourself. The 6th amendment automatically provides criminal suspects the right to have an attorney. It's not like a cop's statement that "you have the right to remain silent" magically creates that right, and that the right doesn't exist absent the statement.
Moreover, because anybody who's ever watched television has heard the Miranda warning, and knows about these rights, it's not like the police are going to somehow trick a terror suspect into giving up information if the suspect isn't told that he can remain silent. However, failing to give the Miranda warning before questioning a suspect does mean that information you get out of the suspect won't be admissable when prosecutors bring him to trial.
Really what this is about is not the Miranda warning at all, but a desire by certain folks to deny fundamental constitutional rights (like the right to counsel, or the right to remain silent, or the right to remain free of unreasonable searches and seizures) from anyone that gets labeled a "terrorist," even if that person hasn't been convicted yet, and even if the suspect is an American citizen.
This is why those same folks like to play games about who gets called a terrorist - underpants bomber and times square bomber are terrorists (because they're muslims) but the guy who flew his plane into the IRS building or the militia members who wanted to blow up cops with IEDs aren't terrorists - the label makes a difference if one group of attempted mass murderers get constitutional rights and the other doesn't.
As happened with the underpants bomber in December, the freakout has centered around what a terrible idea it was for the police to read the suspect a Miranda warning. John McCain said that "It would have been a serious mistake to have read the suspect in the attempted Times Square car bombing his Miranda rights" and Joe Lieberman is talking about getting around having to read the Miranda warning by stripping suspects of their citizenship and shipping them to Gitmo (which frankly is too insane for me to even discuss, but Matt Yglesias explains why it's ridiculous here).
Here's why this is unutterably stupid. When police read a suspect the Miranda warning, they are not conferring any rights on the suspect. All they are doing is advising the suspect that he has rights that are already conferred automatically by the constitution. The 5th amendment automatically provides a right to remain silent and not incriminate yourself. The 6th amendment automatically provides criminal suspects the right to have an attorney. It's not like a cop's statement that "you have the right to remain silent" magically creates that right, and that the right doesn't exist absent the statement.
Moreover, because anybody who's ever watched television has heard the Miranda warning, and knows about these rights, it's not like the police are going to somehow trick a terror suspect into giving up information if the suspect isn't told that he can remain silent. However, failing to give the Miranda warning before questioning a suspect does mean that information you get out of the suspect won't be admissable when prosecutors bring him to trial.
Really what this is about is not the Miranda warning at all, but a desire by certain folks to deny fundamental constitutional rights (like the right to counsel, or the right to remain silent, or the right to remain free of unreasonable searches and seizures) from anyone that gets labeled a "terrorist," even if that person hasn't been convicted yet, and even if the suspect is an American citizen.
This is why those same folks like to play games about who gets called a terrorist - underpants bomber and times square bomber are terrorists (because they're muslims) but the guy who flew his plane into the IRS building or the militia members who wanted to blow up cops with IEDs aren't terrorists - the label makes a difference if one group of attempted mass murderers get constitutional rights and the other doesn't.
Monday, May 03, 2010
The Tea Party's solution to gays in the military
Two GOP candidates for congress (Ron Kirkland and Randy Smith) explain at a tea party forum how they handled the issue when they were in the military:
Kirkland, a Vietnam veteran, said of his time in the military: “I can tell you if there were any homosexuals in that group, they were taken care of in ways I can’t describe to you.”
Smith, who served in the first Iraqi war, added: “I definitely wouldn’t want to share a shower with a homosexual. We took care of that kind of stuff, just like (Kirkland) said.”
Assuming that Kirkland and Smith are alluding to a "code red" kind of "taking care of them" (and not the way that a 15 year old would assume that they "took care of them," particularly after hearing Kirkland's follow-up comment - “Things don’t go well in military barracks when you have 50 guys sleeping on top of each other”), I think the voters in Tennessee should be directed to Article 93 of the Uniform Code of Military Justice which notes that "cruelty and maltreatment" is punishable by dishonorable discharge and a year at Ft. Leavenworth.
Kirkland, a Vietnam veteran, said of his time in the military: “I can tell you if there were any homosexuals in that group, they were taken care of in ways I can’t describe to you.”
Smith, who served in the first Iraqi war, added: “I definitely wouldn’t want to share a shower with a homosexual. We took care of that kind of stuff, just like (Kirkland) said.”
Assuming that Kirkland and Smith are alluding to a "code red" kind of "taking care of them" (and not the way that a 15 year old would assume that they "took care of them," particularly after hearing Kirkland's follow-up comment - “Things don’t go well in military barracks when you have 50 guys sleeping on top of each other”), I think the voters in Tennessee should be directed to Article 93 of the Uniform Code of Military Justice which notes that "cruelty and maltreatment" is punishable by dishonorable discharge and a year at Ft. Leavenworth.
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