Khalid Sheikh Mohammed, who masterminded the attacks of September 11, 2001 which killed thousands of innocent men, women and children in New York City, central Pennsylvania and Washington, D.C., is neither an American citizen nor a terrorist detainee captured on American soil. Farouk Abdulmutallab, who on Christmas Day 2009 filled an airliner high in the sky above middle America with the smell of burnt testicular hair, was indeed captured on American soil but is not an American citizen. Faisal Shahzad, who botched a car bomb attack on New York City only a little more than a week ago, is both a naturalized American citizen and a terrorist captured on American soil.
See the distinction between the three? The Obama administration doesn’t. And had former president George W. Bush and his administration failed to see the same, he would have been absolutely crucified by the mainstream press.
But that’s exactly what is not happening to Barack Obama, his administration, and his Justice Department. Yesterday, the New York Times reported that Attorney General Eric Holder is looking for a new law which would limit the privilege against self-incrimination extended to American citizens and preserved by the Fifth Amendment to the United States Constitution.
“We’re now dealing with international terrorists,” Holder said, apparently emerging from some sort of sensory deprivation chamber in which he has been sitting for the past nine years, “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.” And such a modification of the rules, according to the Times:
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.
Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
Perhaps this is where I depart from many conservatives, but I have a serious problem with this.
The first, and most important, issue stems from the blanket application of any new rule modifications to any and all “terrorism suspects,” including American citizens. I have no problem whatsoever strenuously objecting to this administration’s change in protocol mandating that foreign terrorists captured on the battlefield overseas be informed of a privilege against self-incrimination, nor do I see a problem with such a privilege being refused when it comes to a foreign terrorist captured on American soil. Where I absolutely, positively do have a problem is with an American citizen being denied an individual right preserved by the United States Constitution. Again, if George W. Bush had even hinted at this, he would have been crucified.
Second, I’m not certain that case law already doesn’t provide an end-around providing for Miranda-like protection for those not read their Miranda warnings. The Fifth Amendment, after all, preceded Miranda v. Arizona by 175 years, and it is the Fifth Amendment which offers protection against self-incrimination.
I’ve gone over this once or twice before here at America’s Right, but it bears repeating. An individual’s silence or speech while in law enforcement custody is protected by the privilege against self-incrimination, a privilege extended to defendants prohibiting the admission of statements–or lack thereof–obtained during “custodial interrogation” unless procedural safeguards had been employed to protect it, a privilege which carries with it the implied assurance that silence in the face of government questioning will not be penalized, that the right to remain silent will not be encumbered by the government through comments made at trial about a defendant’s decision to exercise that right.
Miranda v. Arizona was the seminal Fifth Amendment case from which the Miranda rights draw their name. In that decision, “custodial interrogation” was defined as any questioning brought on by law enforcement officers after an individual has either been taken into actual custody or deprived of his freedom in any significant way. Since Miranda in 1966, however, the scope of Fifth Amendment protection for individuals has expanded — the the protection against self-incrimination could extend to a period of time even before an individual has been taken into custody, and even the Miranda warnings themselves could be perceived as relatively ceremonial.
In United States ex rel Savory v. Lane, a 1987 case which questioned whether a prosecutor could cite a defendant’s silence as substantive evidence of his guilt, the Seventh Circuit Court of Appeals determined that the privilege against self-incrimination applied to the defendant even before he was remanded into custody. In that case, the defendant had refused to speak with police officers when first asked about the murder of two teenagers and, even though the silence came at the start of the investigation and before the defendant was taken into custody, the court nonetheless held that the self-incrimination clause applied not only to a defendant’s statements or silence in custody and before trial, but also to a defendant “even before arrest.” Furthermore, the Ninth Circuit Court of Appeals in United States v. Whitehead noted just ten years ago that the right to remain silent derives from the Constitution and not the Miranda warnings, and held that regardless of whether any warnings are conveyed, any comment in court regarding a defendant’s exercise of that right violates the Fifth Amendment. In that case, the defendant was never apprised of his Miranda rights as customs officials searched his vehicle and found drugs along the U.S.-Mexico border, yet the government was nonetheless barred from commenting at trial on any communication or lack thereof.
Of course, there are other decisions from other circuits which lean in the opposite direction, but the point is that there is already ample jurisprudence which, as Eric Holder’s new plan purports to do, “generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.”
And that’s only part of why I maintain that we should be wary of leftist ideologues bringing gifts, especially when they so desperately need to remove egg from their face and score political points. The other reason for being wary comes from track record.
Remember that this is a Justice Department stocked with attorneys who have previously advocated for terrorist detainees housed in Guantanamo Bay. Remember that this is a president whose first, knee-jerk reaction as president was to shutter that detainee facility without so much as a consideration for a backup plan. Remember that this is an administration which commenced investigations of our own intelligence officials. Remember that this is an administration which released from custody the mastermind of the bombing of the U.S.S. Cole and a chief recruiter for Al Qaeda who brought on board several of the 9/11 hijackers. Remember that this is the administration which still has not admitted to wrongly pushing for Khalid Sheikh Mohammed to be tried in federal court in Lower Manhattan.
And remember, as this administration sets forth a measure which would make it easier to specifically deny American citizens the privilege against self-incrimination, that this is a group of people who consistently looks at its own domestic political enemies before addressing the reality of an outside world in which there are radical Islamic jihadists committed to taking innocent American lives at whatever cost.
And let’s not forget, either, the reasons which secured the recent release of that Al Qaeda recruiter. From an April 12, 2010 piece here at America’s Right:
On Friday, the United States District Court for the District of Columbia released a redacted version of the decision by the Hon. James Robertson. In the ruling, Robertson stated that the U.S. government had failed to adequately prove that Salahi–captured in November 2001 and accused of involvement in the thwarted “Millennium” bombing on the West Coast and of recruiting several of the attackers who carried out the September 11, 2001 attacks on New York City and Washington–was sufficiently connected with al-Qaeda at the time he was nabbed so as to warrant being held at Gitmo, where he was once considered one of the highest value detainees.
According to Robertson, the legal question at hand when considering the situation of terrorist detainees is when that detainee was considered “part of al-Qaida.” In this case, while “[t]he evidence does show that he provided some support to al-Qaida, or to people he knew to be al-Qaida,” Robertson noted that “[s]uch support was sporadic … and, at the time of his capture, non-existent.”
Here’s the important part, as it relates to the ongoing prosecution of the newly-acronymed operation formely known as the Global War on Terror as a routine criminal exercise. According to Robertson, the government’s attempts to prove Salahi’s involvement through his own now-retracted admissions failed because it was “so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.”
“There is ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantanamo from mid-June 2003 to September 2003,” Robertson states in the decision. “Salahi’s position is that every incriminating statement he made while in custody must therefore be disregarded.”
Well, if you remember when the outcry over the criminal prosecution of terrorist detainees reached a fever pitch after Attorney General Eric Holder proposed that we rent Khalid Sheikh Mohammed an apartment in Lower Manhattan for a few years, other than the security issues and the cost involved with tempering them, the concern was two-fold: First, that any information gleaned through enhanced interrogation, through battlefield interrogation, or that somehow ran afoul of Miranda v. Arizona would be tossed out; and second, that classified information could be compromised due to the evidentiary needs of a criminal case.
If I didn’t know any better, considering the ruling from the Hon. James Robertson, it might be said that by fostering a situation in which evidence is gleaned from an interrogation which runs afoul of Miranda, this Justice Department could be setting us up for failure in the courts.
Nevertheless, when I look at this new modification as set out by Barack Obama and Eric Holder, I see a needlessly redundant plan designed to further erode constitutional rights already being infringed upon left and right by this administration. If this president wanted to truly provide for the common defense, he would project strength instead of weakness, he would stop apologizing for America, and he would truly make an effort to understand the realities of the world in front of him.
Some might argue that this is a start, but if these people honestly believe that we are only just now dealing with international terrorists, and if they fail to understand the difference between American and foreign terrorists, I would argue otherwise.