George W use to tell us that "9-11 changed everything." In my own, obtuse way I used to resist this, probably because my hangup is an insistence that life be looked at rationally. As a result, and paradoxically, I'm sometimes late to the Zeitgeist party. I tended to think that 9-11 represented mainly a massive breakdown in government security, pulled off by a group of committed terrorists who operated virtually out in the open (taking flying lessons at American schools, for example), overstaying their visas, and in general just being pretty damn obvious about it all. Anyway, some of the main characters involved in the 1993 plot against the World Trade Center were back in action on 9-11, and the idea of a massive terrorist plot using multiple American commercial aircraft had been around for a long time. The Bojinka plot of the 1990's, for example, was another wet dream of Khalid Sheikh Mohammed, where as many as a dozen passenger jets were to be hijacked and crashed over the Pacific. Spooky even to think about.
A friend of mine of many years duration and I were emailing recently about what I perceive as an erosion of basic due process rights in America. The whole ideological superstructure is under assault these days, on many fronts, and, as W would have it, you can trace it all back to 9-11. Terrorism is used these days to justify a steady, relentless rollback of the "activist" decisions of the Warren and Burger courts of the 1960's and 1970's, including Miranda vs. Arizona, the landmark 1966 case, the language of which has been quoted by everyone from Jack Webb to Jack Lord (although Lord usually delegated the duty to Dan-O). You have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney, if you can't afford one, an attorney will be provided to you, do you understand each and every one of these rights. Then, in the police procedural TV shows, the perp always talks anyway.
The subject has come up again because the usual blowhards (John McCain, Rudy Giuliani, Rush Limbaugh, Joe Lieberman) are weighing in on whether the Times Square bomber should have been given a Miranda warning. He was, apparently, after an initial delay, and then Faisal proceeded to unburden himself, implicating the Pakistani Taliban and telling the whole story. That often happens in police detention situations. Miranda was a controversial decision even in 1966 (a 5-4 decision, with some highly principled conservative judges, such as John Harlan, strenuously dissenting). I think I can understand that; Chief Justice Warren's gloss on the 5th Amendment was that police detention is "inherently coercive," and thus violative of the 5th Amendment's privileges against self-incrimination and effective right to counsel unless the situation was balanced by informing the defendant of his rights. The 5th Amendment itself does not spell out what must be done, so who knows whether the Constitution's drafters really had something like Miranda warnings in mind. The privilege against self-incrimination simply details that a defendant cannot be compelled to be a witness against himself, as in police use of rubber hoses (or the CIA's use of waterboarding).
I watched Eric Holder today on "This Week," and he discussed the possible need to "codify" exceptions to the Miranda rule through an act of Congress. As far as I know, Miranda itself is not codified, other than as an interpretation of the 5th Amendment, so it's maybe a little anomalous to propose a legislative amendment to a Supreme Court interpretation of a Constitutional right. I mean, how can one be certain that the scaling back of a Supreme Court decision does not result in a legislative reinterpretation of settled Constitutional law? Anyway, I'm beginning to get the picture with Mr. Holder: any and all problems are "dealt with" the same way: by punting the decision to some other branch of government, as with the venue question for Khalid Sheikh's trial.
The interesting point to me about all these Constitutional revisionist arguments, as they apply to terrorists, is their circular quality. A suspect does something kind of "terroristy" (to use a Stephen Colbert kind of word), as Faisal is alleged to have done near Times Square, to wit, build and attempt to detonate a car bomb. Although an American citizen, Faisal is kind of foreign: Muslim, roots in Pakistan, et cetera. Thus, reasoning backwards from (a) the general kind of crime and (b) Muslim attributes, we decide that the Bill of Rights which would otherwise apply to an American citizen should be waived altogether. The thwarted crime (a car bomb) is suggestive of stuff that goes on in Iraq, which we call terrorism, and the defendant looks like someone who would do something like that. Using these facts, we decide (at the front end, or ab initio as the lawyers say), that this is not a garden variety American crime (as committed by someone like the Unabomber, for example), but an act of war which might qualify the perp for Padilla-type detention, or, perhaps, for targeted assassination instead of due process, which Obama has expressly authorized in appropriate cases even where the suspect is an American citizen.
There is no real exaggeration in this analysis, I don't believe. The question I have is: how do we actually know all these things about the crime (its terroristy quality, the foreign connections, the political motivation) at the point of detention, which is when we must know such things in order to dispense, Constitutionally, with Miranda warnings? Giuliani argued this morning that Faisal should be designated an "enemy combatant" because of his connections to Pakistan and the nature of his crime, but the first factor could not be definitely determined at the point of detention.
It seems to me that if you take the cumulative effects of the Bush/Obama reworkings of due process rights, as it applies to terroristy situations, that we've arrived at the point where government officials are arguing as follows: an American citizen, if he commits a certain kind of crime, and if he has certain kinds of connections, can be (1) questioned without Miranda warnings, (2) detained indefinitely without trial, (3) designated an enemy combatant and denied the civilian justice system altogether, and/or (4) shot before trial (even before arrest, as in the Anwar Al-Awlaki example), which certainly streamlines and obviates the previous complications altogether. I understand that the KGB operated along these lines, but I'm continually surprised that we're going down the same road. The curious thing to me is that none of these changes seems to have anything to do with enhancing American security. They are all purely a matter of political posturing, with Right wing demagogues (including Democratic reactionaries such as Lieberman) demanding a "get tough" attitude, and the "bipartisan" White House buying in to avoid being outflanked on the yahoo flank. A dangerous game, a slippery slope we started down, and yet the actual record of convicting, incarcerating and even executing terrorists (such as McVeigh, the Shoe Bomber and Zacarias Moussaoui) using standard due process approaches and the civilian courts is very good, and did not require any of these Constitutional shortcuts.
As W said, 9-11 changed everything. I'm probably being too technical. None of this stuff seems to bother people in general. I am curious about how Holder's legislative proposal would be worded. How would you say it? A Muslim, including an American citizen, who attempts or commits a certain kind of terroristy crime involving possible mass American casualties, can be treated as a prisoner of war, and deprived of life, liberty and due process of law if the Executive Branch thinks that's the way to go? That probably still wouldn't go far enough to satisfy Joe Lieberman, but as far as a repeal of the Bill of Rights goes, it's a damn good start.
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