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Ordered Liberty

The ‘Public Safety’ Follies

April 25th, 2013 - 8:19 am

Distinguished members of the bar, right and left, cast brickbats my way for labeling as the “Gitmo Bar” their friends – other distinguished members of our self-congratulatory profession –who volunteered their services in order to file lawsuits against the American people on behalf of our jihadist enemies in wartime. Later, when President Obama came to office, the same sort of caterwauling occurred in response to what I thought was the commonsense point that we oughtn’t want counterterrorism policy to be made by members of the Lawyer Left who had volunteered to work for the enemy and had labored assiduously to erode the law-of-war approach to counterterrorism (i.e., the Bush approach) – such lawyers having by then been recruited to serve in top policymaking posts in the Justice Department and throughout the Obama administration.

We have been seeing the wages of government-by-Gitmo Bar for over four years now, but maybe never as starkly as in the last few days.

It has now been reported by Fox’s Megyn Kelly that the FBI’s interrogation of accused Boston Marathon bomber Dzhokhar Tsarnaev was short-circuited when the Justice Department arranged for him to be given a presentment hearing in the hospital.

In point of fact, it was not the hearing that caused the suspension of vital intelligence-gathering. It was the Obama Justice Department’s decision over the weekend immediately to file a criminal charge against Tsarnaev. Once that was done, the presentment hearing was inevitable. It is required by Rule 5 of the federal rules of criminal procedure. An arrested person must be brought before the nearest available magistrate. The purpose of the proceeding is to get him out of the clutches of law enforcement, have a neutral judicial officer advise him of what he’s been charged with, make certain that he has counsel assigned, and – most significantly – ensure that he knows he is under no obligation to make statements to the police and that, if he has already made some statements, he may stop.

From a national security standpoint, there was no good reason to file a criminal charge so soon and thus trigger procedures that, as everyone involved in the decision well knew, would stop the interrogation. The only reason to do it is political: The Obama administration is philosophically hostile to the law-of-war counterterrorism paradigm. It is determined to regard every terrorist as a criminal defendant rather than an enemy combatant – even if there may be evidence connecting the detained terrorist to our wartime enemies and thus justifying, at least temporarily, an enemy-combatant designation that would allow interrogation to continue for intelligence purposes.

Therefore, in a palpable effort to end any public debate over Tsarnaev’s treatment, and to divert public attention away from what appear to be appalling lapses by the relevant agencies in the months since Tamerlan Tsarnaev got on their radar screen over a year before last week’s terror spree, the administration ran into court.

With a criminal complaint filed, the administration calculated, Dzhokhar Tsarnaev is a criminal defendant – no more need to talk about whether he should be a military detainee. And with the civilian prosecution commenced, the public attention could be shifted from the administration’s investigative lapses to the terrorist’s court proceedings.

But there is always a price to be paid. To start the civilian due process was to guarantee the premature end of the national-security interrogation. And on that score, the administration’s argument that the public safety exception to Miranda is an adequate substitute for the open-ended interrogation permitted under military detention is specious.

The administration would have you believe the public safety exception is a settled doctrine with bright-line rules that permit expansive post-arrest questioning without Miranda warnings or counsel. That is preposterous.

First, like most judge-made law, the public safety exception is construed differently in different judicial circuits. In some, the exception ends – and thus the duty to give Miranda’s advice of rights kicks in – the moment the security threat triggering the exception has been erased. So, for example, even if your arrestee is a terrorist, once you have him in cuffs and are satisfied that he is no threat to the arresting officer – i.e., that he is not armed and there are no weapons in the immediate vicinity – the threat is over and you have to advise him of his rights.

Other courts will give more leeway. They reason that if the person arrested is in a position to cause or command violence, the exception should be extended until he is no longer in a position to do that. So, for example, if there was a legitimate reason to suspect that the Tsarnaevs had planted other bombs around Boston, there might be some license to probe that possibility and conduct pre-Miranda questioning until it was answered. But again, once it is answered, the threat is over and the warnings must be given.

Here, a policy point must be stressed – and one would think you’d know this from the Lawyer Left so you wouldn’t have to hear it from the right-wing nut-job former-prosecutor-type. The point of the public safety exception to Miranda is not to give the police an advantage in building a case against the detainee; it is to address any immediate threat to public safety. Consequently, it is not an avenue for conducting a comprehensive intelligence-seeking interrogation of a suspect. The questioning is supposed to be narrowly tailored to the safety threat that triggers the exception.

The public safety exception is no substitute for an open-ended intelligence investigation for national security purposes: to drill down into what ties the Tsarnaevs may have had to al Qaeda-connected jihadist groups in Dagestan and Chechnya; to determine whether there are any more bombs; to find out if the brothers had access to a broader support network in the U.S.; etc.

That kind of investigation is not possible in the civilian criminal justice system. Once you charge someone, the case and the procedural rights of the terrorist take precedence over the public’s interest in quickly obtaining national-defense information to protect American lives.

In an administration being steered by the Gitmo Bar, that has always been the policy choice. Maybe it will finally dawn on people that putting our security in the hands of lawyers who volunteer their services to our terrorist enemies in wartime was not such a great idea.

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All Comments   (52)
All Comments   (52)
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You know, the reason we even have this problem regarding Mirandizing is because Republicans (esp. W.) AND Democrats (esp. Obama) have been bringing Muslims into the US. This seriously accelerated after 9/11, under W.

So, I guess I'm unimpressed with McCarthy's article because it fails to make this very basic point. All of the problems we are discussing are entirely unnecessary. We have no need to provide Muslim student or work vivas. We certainly have no need to allow Muslim illegal aliens. Regarding the latter, both parties are gung-ho to legalize these aliens in so-called "immigration reform."
1 year ago
1 year ago Link To Comment
You Mirandize him because he's a US citizen and has been charged with a crime. The libs screamed bloody murder when the animals captured on the battlefield in Iraq and Afghanistan weren't treated like common US criminals. Where is their indignation now that a crime has been committed on US soil and the perp hasn't been treated that way? They'd better do that to him, otherwise, when this government decides to deny the next accused criminal their Constitutional rights, who can complain?
1 year ago
1 year ago Link To Comment
wonderful country letting in people that need to be on welfare, giving them citizenship and then protecting them when the blow up bombs killing and maiming so many.

And this is what happens when obozo, our clown in chief got elected, and reelected and gets to keep his court jesters in place.

Anyone see the story about the voter fraud that got him on the ballot in the first place, seems that convictions occurred, and if the media had vetted him in the first place, he may never have been on any ballots an this UNPATRIOTIC, IRRESPONSIBLE, chicago style thug politician and failure would not be abusing us and abusing the trust given to the president of this country.
1 year ago
1 year ago Link To Comment
Uh, not so fast, barry1817. Bush was the guy who started the recent Muslim influx, not Obama. Bush was the president who said that Islam was a religion of peace. I loathe Obama as much as the next guy, but you don't get to make this a partisan issue.
1 year ago
1 year ago Link To Comment
Actually, it began in the mid 70s and excellerated during the Reagan era first -- then, you're claim is right on course.
1 year ago
1 year ago Link To Comment
President Bush also said something like,..."They're either with us or against us."...referring directly to those Muslims resident then in our country. That should still hold true. Muslims are "duplicity central".

There, I've uttered a stereotypical generalization....somebody sue me.

"W" was apparently aware of the risks mentioned, but his collective [-ed] advice turned out to backfire. The buck indeed stopped with him. All in all, we need more of his stock.

Frankly, we Americans aren't as sophisticated and worldly-wise as we like [collectively] to think we are.

I offer that as sort of a backhanded compliment to us, as we've only had about three centuries, two of which were closely tied to the Europe which the early arrivals escaped for various reasons, and a mere one hundred years is but the blink of an eye to Arab/Persian/Hittite [?], Sumerian [?] in-fighting throat slitting, smiling butchery. We Americans simply aren't very good at duplicity and hypocrisy...... by West Asian standards who've had millennia.

al-Gebra, anyone? ...while we on the "experienced" subject.

The Hatfields and the McCoys were [are?] amateurs. Biden/Obama/Holder/Napolitano/Hillary......?......good grief!...they're children.
1 year ago
1 year ago Link To Comment
Whether we like it, or even admit it, we are at war with an ideology called Islam. This enemy is not of a paticular country nor of a particular area on earth. This enemy exist in the hearts and minds of those people who follow this ideology founded by Mohammad in Arabi at the beginning of the sixth century AD.
They 'the Islamists' have been at war with the rest of the world for the last 1500 years. Sometime they are expanding into new territory and sometimes they are falling back. Of late they have been expanding in territory and they are now the second largest ideological group on earth with 1.2 billion followers.
We have been under active assault by these Islamists for the last 50 years and it has been a soft assault up until 9-11, since then it has still been mostly soft but more militant at times.
This is not going to get better, we are now moving into Militant Civilization Jihad and we will continue to have Boston types of issues across the Nation.
Sense 2000 we have been under Stealth Jihad and we have been severly compromised throughout our society at all levels with Islamic inroads. We now have some 7 million Muslims in our Nation and we are beginning to see Shariah Law in parallel to our Constitutonal Law, this is more Stealth Jihad.
Take a look at Europe to see where we will be in another ten years if we do not wake up and push back in our society.
LIKE IT OR NOT WE ARE AT WAR AND IT IS FOR OUR VERY EXISTENCE...
1 year ago
1 year ago Link To Comment
I'm not concerned about denying due process to a terrorist, I AM concerned that even when we get information that leads us to other terrorists, WE CONTINUE to let foreigners come to our country. What's the point of having CIA, a FBI, or Homeland Security when the door is open to the world? If our elite rulers really cared about our security, our borders would have been closed on 9-12-2001.
1 year ago
1 year ago Link To Comment
What you say here is very true.

Sadly, however, commonsense has been trumped by vote-seeking and -keeping strategies and tactics....of both Parties. Hence our open borders, or practically open borders.

Votes equal tenure, and tenure trumps all in "popular-itics".....in Washington as in State Capitals.....not to mention that ugly countervailing power called "Lawfare" so skillfully exploited by the likes of the A.C.L.U., the C.A.I.R. in particular and the Muslims resident here in general.

We're in a helluva mess.

......personally, I'd welcome back the Harding Administration.....<;-} .....life was simpler then.
1 year ago
1 year ago Link To Comment
Me thinks the discussion thread here is misplaced. Are we in an offocially declared war against terroism? Well, while we would like to use this as an excuse, the accurate answer is "No". We have a term "Wor on Terror" but that is just a rallying cry because one cannot legally declare war on a concept - only another nation. So should Tsarnaev be denied his rights for what he did? As much as I would like to say "Yes", to do so would create a slippery slope of when the government could decide do suspend other rights because it seems appropriate. Until Obama came along, we were a nation of laws and that is the glue that binds our nation together.

The real issue that should be discussed is who sent the court judge to the hospital to Mirandize Tsarnaev and why was there not only no coordination of the event, but what amounts to a denial that they were responsible for the act by this administration. To me it is clear that the administration sent the judge over to Mirandize Tsarnaev which was the correct thing to do, but then seemed unsure of their legal standing. Could it be that this administration simply has no clue on how to govern or is it something more sinister such as some of those ideas that the birthers would bring up as an excuse? It would seem the answer to this depends on your level of paranoia or conspiracy belief of this administrations. At this point, there is little I would not believe about the real maneuvering behind the scenes because, for having an administration that pays lip service to" transparancy", real honesty and transparancy in this administration can likely be found most easily found in the pot of gold at the end of the rainbow.
1 year ago
1 year ago Link To Comment
1) If I'm not mistaken, the individual was a U.S. citizen. Under Supreme Court case law, he is entitled to some sort of due process before he can even be labeled an enemy combatant--the Government cannot just go about labeling U.S. citizens enemy combatants without providing them an opportunity to contest the allegation.
2) Who cares if he was mirandized? He can still be interrogated in violation of those miranda rights, without the prosecution being jeopardized. If someone is mirandized and then illegally interrogated, or if they are illegally interrogated without being mirandized, the charges aren't thrown out. All it means is that the illegal statements, and any evidence derived therefrom, cannot be used against the defendant. Here, they've got endless evidence against him regardless of his statements (photos/video, the witness who was kidnapped by the brothers, not to mention the explosives he was caught with when arrested).
1 year ago
1 year ago Link To Comment
Furthermore, if his illegal statements lead to the arrest of others, the others cannot challenge their arrests on the basis of those illegal statements--if you are arrested because the government violated someone else's constitutional rights, you can't raise that as a defense; you can only raise the violation of your rights.
1 year ago
1 year ago Link To Comment
Andrew -- Why did you remove my comment? I ask a legitimate question followed by comments that were absolutely true and well applies to any other profession of these times -- including most all politicians. I'm a retired farmer and rancher and I'll be the first to tell you there is corruption throughout all tiers of the industry today. Thin skin?
1 year ago
1 year ago Link To Comment
Another reason might be that if the brothers were double agents, as some claim. Then no further investigation into that is now possible.
1 year ago
1 year ago Link To Comment
If enough people believe "we are at war", this perpetual "we are at war", we will lose all our civil and constitutional rights. It will be as with the Fourth Amendment at airports, but with everything and everywhere.
1 year ago
1 year ago Link To Comment
Take a deeper breath.

During the intensity of The Second World War [I was a teenager] and during the Korean War [I was in the R.O.T.C] and the Indochinese/Vietnam War [I was a civilian expat participant] we did not lose all of our civil and Constitutional rights.

Is it literally "unreasonable" to search...now....under our present circumstances....with our different Muslim guerilla civilian ununiformed enemy practicing a different more personal barbarity..... for explosive vests under our shirts, or to feel physically for what seem likely explosive devices in our crotches?....when these have been used. already, aboard passenger airliners?

In those "so yesterday" and now forgotten times, we did not have suicide vests hidden under our shirts and bombs concealed in our underwear crotches, nor did we have box cutters in our hand baggage, or pistols with which to gain access to the cockpit of an aircraft in flight.

That began separately with the Cuban air hijackers.

Who knows, now, what that elderly gent wheezing in that wheelchair has concealed under his leg blanket?

Is that nice old lady wearing that headscarf willing to cause you to die after takeoff? Are you sure - yes? - no?

What you should be advocating is profiling....profiling...profiling.......but you daren't because that might be singling out that young man with that beard and nervous behavior while his sweaty hands display is boarding pass. and he might just use his cell phone to call his ACLU lawyer on speed dial.

So.....you examine everyone....everyone...everyone......

You then...personally.....can make the individual judgment calls for three hundred other passengers.
1 year ago
1 year ago Link To Comment
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