Thursday, May 13, 2010

Is Holder ruining "Law and Order?"

But, what’s going to happen to the police dramas on television we all love?

Last week, Attorney General Eric Holder announced his support for a limitation on a suspect’s Miranda rights in a terrorism case. This comes on the heels of Republican criticism of Times Square bombing suspect Faisel Shahzad being read his Miranda rights during questioning.

Just so we’re clear, “Miranda rights” come from a Supreme Court case called Miranda v. Arizona, where the Supreme Court ruled that the Constitution required a criminal defendant be advised of his constitutional right to remain silent and have a lawyer present during questioning by law enforcement. The rationale behind the decision was to ensure that suspects were aware of their constitutional rights and prevent confessions from being made due to force or deception.

It also made dialogue for TV police dramas much easier to write. But I doubt that was the main intent of the decision.

During the Bush administration, the “war on terror” was used to ignore a whole swath of constitutional rights. We were introduced to the concept of unchecked Presidential power, indefinite detentions, warrantless wiretaps, trials without lawyers or juries, confessions obtained from torture, and a whole host of other “techniques” that sound a lot more Soviet Russia than Uncle Sam.

At first blush, the Obama administration seems to be reigning in some of these practices. They do seem to view attacks like Shahzad and the Christmas Day airplane bomb attempt by Umar Farouk Abdulmutallab as crimes and treat them accordingly.

But not completely. The Supreme Court created a public safety exception to Miranda, and the Obama administration has been aggressively using that exception to question suspects like Shahzad and Abdulmutallab before they get a Miranda advisement.

Wait a minute, you say. Cops don’t always have to read a suspect’s Miranda rights immediately upon arrest?

Nope. In New York v. Quarles, the Supreme Court said that a suspect can be questioned without a lawyer and without a Miranda advisement when public safety concerns are “paramount.” The Obama administration has used Quarles as the camel’s nose under the Miranda tent. Now, Holder has announced he wants to expand law enforcement’s ability to suspend the Fourth and Fifth Amendments and question terrorism suspects without lawyers or Miranda advisements.

I’m of two minds about Holder’s proposal. On the positive, it is reassuring to see that there is at least an acknowledgment of the Bill of Rights and the necessity of ensuring that due process is provided even to terrorism suspects. I’ve written for years about how the difference between a free society and a dictatorship is the Bill of Rights and its’ limitations on the government’s ability to use its’ power against the government’s own people. The Obama administration, far more than the Bush administration, appears to understand the need for such limitations to maintain a free society.

And, it could be worse. Senator Joe Lieberman recently put forward a bill that would strip American citizenship for someone that was accused – accused, not convicted – of a crime of terrorism. Lieberman has taken the lead in police-state-like proposals cloaked in a “war on terror” sheath, but his citizenship-stripping idea has taken his contempt for the Bill of Rights to eleven. The fact that this guy was one Supreme Court justice’s vote away from being the vice president in 2000 is, in hindsight, terrifying. Who would have thought that Lieberman could have made Dick Cheney look like a civil-libertarian vice president?

But Obama has shown that he has a little authoritarian in him as well. The “public safety” exception to Miranda could end up being an exception that swallows up the rule if written too broadly. Obama has yet to close Guantanamo Bay and is still allowing a Guantanamo-style prison to be operated in Afghanistan where people are being detained indefinitely. He’s even staked out a position that a President has the authority to order the assassination of specific individuals if he feels it necessary.

He’s not Bush, but there’s a lot of Bush in Obama when it comes to national security and constitutional rights issues.

It’s really ironic. The Tea Party folks make hysterical “unconstitutional!” shrieks about things that are completely constitutional, such as health care reform and Obama’s eligibility to be President. They accuse him of violating the Second Amendment and “wanting to take guns away” when he has done nothing of the sort and has taken an extraordinarily expansive view of the Second Amendment. Yet they are completely silent about breaches of actual Constitutional freedoms, like the Fourth, Fifth, and Sixth Amendments.

Apparently, amendments four through six don’t move the needle in BeckPalinStan.

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