This story goes back to early May, so forgive me for the time-warp, but it’s an important one that needs to be covered. One of the reasons the Global War on Terror (or Overseas Contingency Operation, whatever) has been so controversial is that the whole thing is taking place in a kind of legal vacuum. Most of the laws – international and domestic – as well as the moral norms are designed for one of two circumstances criminal activities or declared war between nation-states.
Since terrorist acts like 9/11 and the war in Afghanistan clearly don’t fall into either category we’re basically making stuff up as we go.
One of the bones of contention has been Miranda warnings. Specifically: who gets them. As a quick refresher: Miranda warnings are not a condition of detention or interrogation. Cops can arrest and interrogate without ever giving a Miranda warning. But any testimony they get without that warning is not admissible in court. So if you want to build a criminal case against someone you have to Mirandize them. On one extreme it seems pretty ridiculous to give Miranda warnings to foreign nationals captured during military operations overseas. On the other extreme you’ve got to consider American citizens captured on American soil.
The issue re-emerged after the May 1 Times Square car-bombing attempt. One it was clear that the alleged perpetrator was an American citizen the issue of Mirandizing showed up front and center. As usually you had the defense hawks – like Lieberman – arguing that a Miranda warning was inappropriate in a case like this. And you had the usual liberals arguing that stripping American citizens of their Constitutional rights against self-incrimination (which is what the Miranda warning is supposed to protect) is not a good idea.
And then a strange thing happened: Glenn Beck showed up on the side of the liberals. Here’s an exchange that he had on Bill O’Reilly’s show:
Glenn Beck was actually making a really sophisticated and vitally important point, but I don’t think it really came through very well unless you were looking for it. And so I wanted to elucidate what he was saying.
First of all it’s a red-herring to bring up the “what if they are about to blow up a building” scenario because there are already built-in safeguards for emergency situations. So let’s set that aside. The real nexus of this exchange is whether or not we’re at war. Bill O’Reilly’s point is that – practically – we are. And he’s right.
But Beck’s point is even more important. The Obama administration has not declared war. So if we allow them to override habeus corpus and Miranda rights for an emergency that falls short of war we have vastly expanded the powers of the executive branch.
If folks like O’Reilly – in the name of protecting American people – hand the Obama administration the power to decide who gets Constitutional protection and who doesn’t even when we’re not at war, then they are handing the Obama administration a weapon that will be used not just against domestic terrorists like Faisal Shahzad, but against the Americans that the Department of Homeland Security is apparently most concerned about: right-wing activists and returning veterans.
I get that people want to do whatever it takes to keep America safe, and I sympathize with that. But we have to ask what we’re sacrificing for our safety, and in cases like this the answers is “too much liberty”.