Beware of Leftist Idealogues Bringing Gifts

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.



  1. Times Square Obama rights says:

    You have the right to remain vulnerable, You have the right to a flak vest. If you cannot afford one, one will be provided for you at no cost. You have the right to a bomb sniffing dog and to have one present with you at all times. Do you understand these Obama rights as explained to you?

  2. Boston Blackie says:

    Well said, Jeff, my thoughts exactly when I heard of this admin’s change of heart. If enacted, this will be used against Americans to instill fear in us, not against foreign terrorists. Damn those tea partiers, we will put the fear of God in them so they will no longer speak out against us. We will drag their sorry arzes in for questioning since they are enemies of the state!
    We will not be fooled.

  3. Whats_up says:


    You seem to forget that many Conservatives are for this very thing.

  4. This guy has lost it says:

    “And meanwhile, you’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t always rank that high on the truth meter. And with iPods and iPads and Xboxes and PlayStations — none of which I know how to work — information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation. So all of this is not only putting pressure on you; it’s putting new pressure on our country and on our democracy.”


  5. Jeff Schreiber says:

    What’s up — I think (I would hope) that where she and I and most conservatives differ is in the treatment of American citizens versus foreign terrorists. They should be treated differently.

    Granted, if you want to make me sweat a little bit about my argument, ask me about Adam Gadahn. He’s an American citizen after all (unless he relinquished it), but he’s also a foreign terrorist and an infinitely valuable intel source at that.

  6. Jeff Schreiber says:

    Sounds like something Castro or Chavez would say.

  7. Whats_up says:


    I actually agree with you on the Miranda rights for American citizens, and the Constitution is pretty clear with individuals arrested on American soil as well. However members of the GOP would rather we not read Miranda warnings to Americans, as both Sen. McCain and Rep. King have voiced. Also I believe that Ms. Cheney has also given her opinion on this matter as well.

  8. Boston Blackie says:

    “The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights”
    Like Clinton with his “depends on your definition of what is is”
    It depends of your definition of who is a terrorist.

  9. Gail B. says:

    I don’t trust I-Obama, his AG, his Czars, minions, or “good buddies!” If they say it, I either won’t believe it or will be afraid of it. PERIOD! I’m tired of thugs running our government. They just don’t have any credibility or our interest at heart. That’s a sad thing to say, too.

    And, Jeff, I promise to “keep my nose clean” because I surely don’t want to risk having to go up against you in court; but in the event that I do need a lawyer, I’d appreciate it if you would pass the GA Bar exam, too!

  10. Boston Blackie says:

    Once again you are taking comments out of context. The individuals you refer to were all speaking specifically of Fonzie Shamwow. I would consider him a foreign terrorist, which they were speaking about. At no time did I hear them say anyone and everyone should be treated this way. Stop painting with a broad brush. I believe that anyone found assisting foreign terrorists should have their citizenship revoked ala “Man Without a Country”.

  11. kj says:

    If an American citizen, such as the Times Square bomber, is accused of treason, can that citizen be tried in a military tribunal? What would be status of evidence provided by the accused in a military tribunal?

    Of course, if the evidence provided against oneself in a treason case can be used against the accused that could be a sticky matter, too. Then all you would have to do to get someone, is to declare that person a traitor. And treason in the Constitution is defined as solely aiding and abetting an enemy. Without a declaration of war, what are the limits on deciding who is an enemy?

  12. Well, at least they seem to be learning on the job – albeit, slowly.
    [For a light hearted take on our present peril]

  13. Anonymous says:

    Our Commander-In-Chief can’t work tools my nephews utilize. Frightening. And what he wants to deprive us of, damned scary.

  14. Anonymous says:

    1:46, I challenge this pres to some Wii bowling! ROFLMAO

  15. whats_up says:

    Boston Blackie said:

    Once again you are taking comments out of context. The individuals you refer to were all speaking specifically of Fonzie Shamwow. I would consider him a foreign terrorist,


    Thats nice that you would consider him a foreign terrorist, however he is an American citizen and American citizens have rights, sorry you just cant wish that fact away.

  16. Boston Blackie says:

    I can wish when it has been proven he got his citizenship under false pretense. He had a sham marriage to stay in the country and apply for citizenship. His wife, Huma Mian, who lists as her passions, “fashion, shoes, bags, shopping!! should be up on charges as well.

  17. Whats_up says:


    None of that matters, the important part is “AMERICAN CITIZEN”. You dont get to pick and choose which citizens get rights and which dont. American citizens have certain rights that are spelled out in the Constitution, please point to the asterisks that indicated they were only for “select citizens”

  18. Anonymous says:

    Citizen, fine. Treason = death penalty.

    This word imports a betraying, treachery, or breach of allegiance.

    The Constitution of the United States, Art. III, defines treason against the United States to consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death. By the same article of the Constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

  19. Gail B. says:

    I wish Jeff Schreiber were POTUS. He would know exactly what to do with Foggy Shammy.

  20. Gail B. says:

    Or, perhaps better yet, Attorney General of the United States.

  21. whats_up says:

    To Anonymous:

    I agree with you. Treason is exactly what he should be charged with as an American citizen if it can be proved that he worked with any foreign terrorist organization or foreign country that we are at war with.

  22. Anonymous says:

    Jon Voight speaks to strengthen us.

    Whats more destructive? bombs or the Alinsky methods? I say the latter.

  23. Randy Wills says:

    After watching Beck yesterday, it seems like he must have read Jeff’s article. Amazing, isn’t it, that Jeff can see the hidden pitfalls/inconsistencies in the administration’s actions a few days ahead of Beck, all without the benefit of a 32-member staff.

    You’re hired, Jeff. Just tell me what your fees are. I’m currently paying $350/hr for legal advice, so any more than that will have to go before the board.


  24. Super anonymous says:

    “terrorist organization or foreign country that we are at war with”

    Islam, plain and simple

    sorry, not PC, but true

  25. Anonymous says:


    350 hr is too much. Redistribute some of that wealth to me. I promise not to work for it, and vote Democrat.

  26. Randy Wills says:

    Anonymous @ 12:43 pm”

    Thanks for the offer, but if I did that, I’d get fired and then we’d both be in the poor house. Oh, wait; there’s always food stamps, rent subsidies, unemployment benefits, free medical care, etc, etc.

    Where do we sign up (but do we really HAVE to vote Democratic? Couldn’t we just claim to be illegal immigrants and get all the same benefits)?


  27. Gail B. says:

    kj said (May 10, 6:12 pm)

    “Of course, if the evidence provided against oneself in a treason case can be used against the accused that could be a sticky matter, too. Then all you would have to do to get someone, is to declare that person a traitor. And treason in the Constitution is defined as solely aiding and abetting an enemy. Without a declaration of war, what are the limits on deciding who is an enemy?”

    Ah, perceptive question, KJ!!! Made me wonder if perhaps that’s the reason there’s an overseas contingency now, instead of the War on Terror.

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