Lindsey Graham, Dzhokhar Tsarnaev, Drones, Constitutional Guarantees

Lindsey Graham seems to think the U.S. Constitution begins and ends with a very crimped interpretation of the Second Amendment. In his view it mandates that anyone can, willy-nilly buy any weapon he wants without any kind of government regulation. Most people not in thrall to the NRA do not interpret the Second Amendment that way. And to Graham, the rest of the Constitution just doesn't seem all that important. Friday, for example, he let loose with the above tweet. If the authorities fail to read the suspect, no matter how heinous the crimes he's accused of, his Miranda Rights-- the right to remain silent until he can consult an attorney-- it violates the 5th and 6th Amendments, two apparently not in the same league as the 2nd-- and could jeopardize the whole case against Dzhokhar Tsarnaev. Graham is an attorney and he should know better.

No sense in getting all flustered and working up into a tizzy and violating the constitutional rights of an American citizen, as Tsarnaev is, on American soil, even if it appears he is a criminal. Worse yet, Graham was commiserating with the Washington Post's sniveling right-wing hack Jennifer Rubin yesterday that there should be more drones spying on American citizens. “This is Exhibit A of why the homeland is the battlefield," he told Rubin on the phone... before launching into an attack on Rand Paul.

Recalling Sen. Rand Paul’s filibuster, Graham noted that he took to the Senate floor specifically to object to Rand’s notion that “America is not the battlefield.” Graham said to me, “It’s a battlefield because the terrorists think it is.” Referring to Boston, he observed, “Here is what we’re up against,” and added, “It sure would be nice to have a drone up there [to track the suspect.]” He also slammed the president’s policy of “leading from behind and criminalizing war.”

Apparently, the Obama Administration decided to go with Graham's interpretation of the Constitution and the FBI did not read the kid his Miranda Rights, invoking a bogus, extra-Constitutional public safety exception that, according to the FBI website "permits law enforcement to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence... Police officers confronting situations that create a danger to themselves or others may ask questions designed to neutralize the threat without first providing a warning of rights."

Last night, writing for Slate, Emily Bazelon explained why we should all be outraged Tsamaev wasn't read his Miranda rights. As she says, "When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape for the rest of us."

Who gets to make this determination? The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power.

The New York Times published the Justice Department’s memo in March 2011. The Supreme Court has yet to consider this hole the Obama administration has torn in Miranda. In fact, no court has, as far as I can tell.

And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

This morning, while 3 Stooges Lindsey Graham, Kelly Ayotte and John McCain were loudly calling for Tsarnaev to not be afforded a trial, Glenn Greenwald asked much the same question at The Guardian that Bazelon had. And answered-- and castigated both Lindsey Graham and the Obama Administration for trampling on constitutional guarantees.

Graham's tweets quickly created a firestorm of outrage among various Democrats, progressives, liberals and the like. They insisted that such actions would be radical and menacing, a serious threat to core Constitutional protections. I certainly shared those sentiments: the general concept that long-standing rights should be eroded in the name of Terrorism is indeed odious, and the specific attempt to abridge core constitutional liberties on US soil under that banner is self-evidently dangerous.

...[T]he Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham's Miranda tweets yesterday. In May, 2010, the New York Times' Charlie Savage-- under the headline "Holder Backs a Miranda Limit for Terror Suspects"-- reported that "the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights." Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power.

...Democrats reacted with horror and outrage to Graham's suggestion that "the last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" But that's already Obama DOJ policy, enacted with little controversy. And last night's announcement makes clear that the Obama DOJ intends, as Bazelon says, to question him about a wide range of topics far beyond matters of imminent threats to public safety without first Mirandizing him.

But there's another reason why I found Democratic outrage over Graham's statements to be confounding. The theory on which Graham's arguments are based is one that the Obama administration has vigorously embraced with the full-throated endorsement of most of its supporters: namely, that the US is "at war", and that anyone who takes up arms against the country or tries to kill Americans is not entitled to basic rights-- even if they're American citizens. As Graham told the Washington Post, his view that Tsarnaev is not entitled to these rights is grounded in his belief that the US is fighting a global war and those who fight in it against the US are "enemy combatants."

It is bizarre indeed to watch Democrats act as though Graham's theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this "entire-globe-is-a-battlefield" war paradigm-- as supporters of Obama's assassination powers must do and have explicitly done-- then it's impossible to scorn Graham's views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham's beliefs are grounded.

...[A]s extremist as Graham's tweets may have seemed to some, it was already done in the US with little backlash. That demonstrates how easily and insidiously extremist rights assaults become normalized if they are not vehemently resisted in the first instance, regardless of one's views of the individual target.

Haters need to hate-- Good morning, America!

And Constitutional slippery slopes don't just happen in Washington and they're not the sole domain of right-wing Republicans. Right-wing Democrats, like California freshman Assemblyman Steve Fox, can he just as dangerous to the Constitution as Lindsey Graham. Fox represents the Antelope Valley in Buck McKeon's congressional district. McKeon, who has worked harder than anyone in Congress to guarantee that tens of thousands of domestic spy drones would have access to American skies, has been working the federal angles. Fox is handling it from Sacramento.

Assemblyman Steve Fox (D-Palmdale) achieved a significant legislative victory with the passage in the state Assembly of AB737, which would take steps to designate California as a test site for unmanned aviation systems, or drones.

By a wide margin, members of the state Assembly voted this week to approve the bill that would require California to apply to the FAA for designation as a site for drone testing. Fox was the sponsor of the bill. The bill now goes to the state Senate for consideration.

According to the wording of the bill, the FAA has already announced the designation of six national drone test sites. Since California is home to much of the aerospace industry and defense industry, a federal test site would ensure the continued growth of the industry and its importance to the state economy.