First, let us consider the use of the term
"Miranda Rights" in referring to the initial juridical process
applied to the surviving bomber (who has apparently confessed). The way the
term is used by most reporters, commentators, and politicians implies that
there is some special set of rights that were created at some time in the past
to protect persons arrested on criminal charges. The implication always is that
there is some special set of privileges granted to certain arrested persons,
especially "very bad" ones.
But as it happens there is no such thing as
"Miranda Rights," no special group of rights plucked out of thin air,
or, heaven forfend, invented by some awful (liberal, you know) Supreme Court to
protect the otherwise undeserving. The Rights in question are actually Constitutional Rights, ensconced in the
Fifth and Fourteenth Amendments to the Constitution. They guarantee, or are
supposed to guarantee, due process of the law (which includes right-to-counsel)
and protection against self-incrimination, before questioning by the
authorities can begin, to any arrestee.
The term "Miranda" which has been so widely
used since the Boston horror, refers to a 1966 Supreme Court decision that
simply said that all arrestees have these rights, whether they know that they
have them or not, and they have the right to be informed of them before any
possible criminal proceedings may proceed. Thus the terms "Miranda
warning" and "Mirandizing." Virtually any watcher of any TV
crime show is familiar with an arresting officer saying to an arrestee:
"You have the right to an attorney. You have the right to remain silent.
Anything you say can and will be used against you." Thus
"Miranda" simply refers to a process clearly and unequivocally
written into the Constitution, not any special group of rights. All US citizens
have these rights, or should have them, under the Constitution.
"Mirandizing" is to make sure that any person has them in practice,
whether they happen to know that they have them, and can articulate them, or
not.
So when the discussion/debate over how the surviving
brother, Dzhokhar Tsarnaev, should be/have been handled, the true subject was
improperly referred to, over and over again, as "Miranda Rights,"
implying that they are something malleable. And so, the existence
of what is now called "The Public Safety" exception, created by the
Supreme Court through several cases in recent years (1). It is applied here to
the surviving brother of the pair who happen to be Muslims, because what they
did has been labelled as "Muslim terrorism," when, as has been
pointed out by a number of observers, other mass slaughters, like Newtown,
Aurora, and Columbine, done by native white, presumably "Christian," males, are
not.
Two precedents have been established here. One is that
the Supreme Court can in essence amend the Constitution even when its language
is clear and unequivocal. The other is that if one part of the Constitution
that is clear as a bell, like the Fifth Amendment, can be amended in this
manner, then others could be too. "The Public Safety Exception" has
become part of the general public's vocabulary in dealing with
arrestees/suspects rights under the law. There may be certain challenges issued
in this case, by organizations like the American Civil Liberties Union, but
that remains to be seen. In the meantime, that a major hole has been punched in
the Constitution protecting everyone seems to have gone on the one hand widely
un-noticed and on the other widely endorsed.
Then we come to Sen. Lindsey Graham's proposal that
Dzhokhar Tsarnaev be treated as an "enemy combatant." Fortunately,
the Federal government decided not to do this, in the case of an American
citizen. But Graham's proposal raises a number of interesting Constitutional
questions. With whom is the United States legally at war in this case?
Rhetorically, of course, the nation has been at war "against
terrorism" (which at the beginning of the so-called "War" a
retired Army officer labelled as being like a "War on Flanking
Manoeuvres"), or against the nebulous (and sometime ally, see Libya and
Syria) "al-Qaeda," or against the not-so-nebulous
"Taliban." But none of these wars have ever been declared by
Congress. So how then would Dzhokhar Tsarnaev, like so many of those held at
Guantanamo, become an "enemy combatant?"
Next, while it is quickly becoming clear that what
motivated the Tsarnaev brothers was a hatred of US policy in Muslim countries
and there are lots of Muslims and non-Muslims who agree with them. (That is they were motivated by revenge, not
any form of "Jihad" [that is holy war] with which their actions are always
associated in the media, liberal or other.) Which leads to the proposal from
the Right, in and outside of legislative chambers, that if one hears a person
making critical statements against US foreign policy, like those that the
Tsarnaevs made, those persons should be reported. To whom I wonder. The Gestapo
(which had such a policy)? The Stasi (which had such a policy)? (Sorry to pick
two German examples, but they do come readily to mind). The FBI (which
apparently already has about 500,000 persons on its "watch list")? Or perhaps to The Helmsmen, of The 15%
Solution (2). And then what is to be done with these reports? But we shall
leave that subject for another day. In the meantime, the government
assault on the Constitution, under the cover of the Boston Bombing, just takes
us one step further towards its destruction.
Historical footnote : It is
interesting to me that I did not hear anyone comment on the first name of the
dead brother, Tamerlane. There was a true historical figure who went by that
name. He was a 14th century scholar/tyrant/emperor/plunderer from what is now
Uzbekistan. Strange that anyone would choose to give a son such a name, but
that too is another matter. Except to
say that I am surprised that certain GOP Senators have not already raised the
question in challenging the competence of the FBI and the INS.
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References:
1. Benoit, C.A., "The Public Safety
Exception to Miranda," https://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest .
2. Jonas, S., The 15% Solution: How the Republican
Religious Right Took Control of the U.S., 1981-2022: A futuristic Novel,
Brewster, NY, Trepper & Katz Impact Books, Punto Press Publishing, 2013, http://www.puntopress.com/jonas-the-15-solution-hits-main-distribution/ ,
Chap. 10.
