Tuesday, February 9, 2010

The Constitution Just Doesn't Work That Way

Lately we've all heard quite a bit from the GOP on whether Federal authorities were wrong to have given Miranda warnings to Umar Abdulmutallab, the Christmas Day bombing suspect. As their argument goes, we've made ourselves less safe and given a huge unfair advantage by letting him "lawyer up." Leading the charge has been the insufferable Sarah Palin and her band of error-wielding cohorts, now featuring Maine Senator Susan Collins. While I'm not surprised that Sarah Barracuda she didn't get into the subtleties (or apparently main principles) of Constitutional law at Hawaii Pacific University, North Idaho College, the University of Idaho, Matanuska-Susitna College, or back at the University of Idaho a second time, I at least wished Madam Collins might have suspected something was off. Don't get me wrong though, Susan Collins has always made me wonder if there was a radon leak in her home or something. Damn that woman is dumb.

The problem here is that those two have echoed a sentiment as to the mechanics of the Constitution that is absolutely flat wrong. They've repeatedly made arguments in essence claiming that the Obama administration completely messed up by issuing Miranda warnings to the suspect because only US Citizens possess the right to counsel or to receive Miranda warnings. And as much as they wish it were so, it just plain isn't. This whole "lawyer up" thing they're ripping on and selling as a way for Obama to let terrorists run amok is one of the central tenets of American law, and is basically just an argument to deny all rights to anyone we think is a terrorist. It's the same as arguing that he shouldn't be able to have a trial, refuse to speak, or cross-examine witnesses.

The Constitution has NEVER been limited to just American citizens. It just doesn't work that way. The entire premise of the Constitution is that it's a set of limits on the Federal Government, not a set of specific powers granted to Citizens (or people at all, really). The reason law enforcement officers read you Miranda Rights in the form of "you have the right..." is to make it easier for mainstream civilians to understand what the limits are on the government's authority. It's just easier for people to understand "you have a right to remain silent" when being arrested as opposed to the more complete but confusing, "you cannot be compelled under the Federal Constitution to make statements in a criminal prosecution or investigation under compulsion or non-coercive interrogation which may tend to incriminate you in the absence of emergency situations, imminent public safety threats, immunity brokered through state or Federal prosecutorial agencies, or various other scenarios allowing for governmental agencies to force you to speak under potential for civil or criminal sanctions." Yeah, it gets a little wordy.

It's sometimes easier to think of the whole Constitution/civilian question for other protections like speech limits. For example, when you want to protest something political, you can because the government can't make it illegal to do so. It's more of a limiting rule on the government as opposed to instilling a power in the speaker. The best way to see this is if you tell your boss to go fuck himself. The government can't set any laws against it, but you can be immediately fired by your private employer on the spot, even while you claim your free speech rights protect you They don't, by the way. And this doesn't matter whether you're a full-fledged citizen or a one-day tourist from Madagascar.

In this same context, Miranda warnings and counsel access have never been limited to citizens alone. Do you really believe that we can just deny normal Constitutional rights to aliens, illegal or not? Of course not. And it shouldn't in a society focused on individual liberty instead of creating a caste system of legal protection. Where there are particular provisions that do limit the breadth to Citizens (or other issues like age limits for voting and running for the Presidency), they're specifically listed and explained thoroughly. You better believe the core rights of a defendant aren't falling under those narrow exceptions.

The only context where you could deny the Miranda warnings or counsel is where you weren't going to try to use any of the statements in a criminal prosecution. I understand the argument that they were looking for information to use to intervene in international terror plots, and I think there is some merits there. But this isn't what they're tossing out into the public forum. They're just using it in this xenophobic drum-banging that we can just start interrogating anyone who we think is a terrorist and deny them the Constitutional protections that we don't want them to have.

It's scary as hell especially because it goes back to this whole idea that we ought to be treating any would-be terrorist as some sort of quasi-military setup. Hell, why are we even doing trials, Sarah? Why don't we just shoot everyone we think might make trouble? If he's a non-citizen, he doesn't get the protection from cruel and unusual punishment, right? Let's get out the torture racks!

Trying to just chip away at civil rights on the basis that we have to to protect ourselves is the crazy thinking that takes us places we don't want to go. As a Franklin quote my friend Len had posted summarizes well, "They who would give up an essential liberty for temporary security, deserve neither liberty or security."


  1. What you gots against the University of Idaho? That place is lawyer'd up.

  2. How is Palin supposed to know what the Constitution says if it isn't written on her hand? Do you know where I can get a tattoo of the Bill of Rights? Maybe the daughter can look into this, she's probably banged a few tattoo artists by now.