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February 02, 2010

Obama Administration to Terrorists: You Used to Have, Hypothetically, the Right to Remain Silent

I think I saw this first noted by James Taranto -- Obama, by refusing to admit any difference between trials of war criminal illegal combatants and citizen criminals, is accomplishing not one but two despicable outcomes.

The outcome he intends is to treat illegal combatants more sweetly and gently.

The outcome he doesn't intend -- but which he is engendering anyhow -- is to treat citizen suspects with less constitutional rights than they've ever had in history.

Few judges will, say, demand that KSM be released into the public a free man due to the serious constitutional violations the government inflicted on him. Violations, that is, if you postulate from the outset he had full constitutional rights of a citizen criminal. If you don't postulate that -- if you postulate he was owed a lesser standard due to the fact he was an illegal combatant -- then there weren't any violations (or at least far fewer).

Now, if a judge won't spring KSM for waterboarding -- surely a "shock the conscience" bit of coercion if performed in a police station house -- then a judge must necessarily bless it as permissible for a run-of-the-mill US citizen suspect, because that is, of course, Obama categorizes KSM.

Assuming the judge does not want immediate calls for his impeachment, he will find some nonsense explanation as to why it's okay to waterboard run-of-the-mill citizen suspects in some (rare) situations. Now, I don't know if any judges will actually follow that precedent, but that precedent will be on the books. In some cases -- the law is never very precise about what these cases are -- it's permissible for interrogators to strap a citizen suspect to a board and drip water into his mouth until he squeals about his confederates.

In the panty bomber case, Mad Maxipad was interrogated for a brief spell (50 minutes) and then... read his Miranda rights.

Let me get this straight. First they interrogate the suspect. Then, after he talks, they tell him he has the right to remain silent. (More like: he had the right to remain silent.)

If this account is correct, itís clear that the Miranda rights are being read purely for show. Like KSMís trial, Obama wants to give terrorists who wage war against this country the appearance of due process, by conferring on them procedural protections to which they are not entitled.

This makes a mockery of the process.

It does indeed, and in order to to make a show of being nice to terrorists, Obama is weakening the constitutional protections that the rest of us have as part of our American birthright.

Fuzzy thinking. They refuse to admit a bright-line distinction, a bright-line demarcation, between the Panty Bomber and all of you, so the line between how the government treats both of you becomes quite fuzzy itself. They'll treat Mad Maxipad somewhat like a normal citizen suspect... and that means they've created the precedent to treat normal citizen suspects somewhat like a terrorist.

Some might take solace in the notion that while Obama refuses to say on paper that only terrorists deserve this special not-quite-constitutional treatment, no prosecutor would ever use these techniques on a normal suspect and then plead the Panty Bomber's case as precedent.

Well... there is precedent for the shady use of precedent. The government created RICO for one purpose -- to go after the mob. RICO's a bit sketchy, really, in that someone at the heart of a broader conspiracy (a mafia family) can be charged for crimes committed without his knowledge by his coconspirators (his soldiers). Usually -- well, like, always -- the law requires actual intent and knowledge to convict someone of a crime. RICO sort of jettisoned that in special circumstances because, well, look: If you're in the mob, fuck you. You know what your buddies are doing even if you don't know what they are doing.

But the point is that RICO -- which one commentator quipped was believed to be understood as not to be used on anyone whose name did not end in a vowel -- then started to be used in all sorts of decidedly non-mafia situations. There was nothing on paper that required the law be limited to La Cosa Nostra, and within years, it was being used to target, well, Operation Rescue, for example. (I think the civil version of RICO was used here, but I forget.)

The point is: Either the government has the power to do something to a suspect or it does not. Either the Constitution forbids a certain practice or it does not.

Bush, the supposed idiot, established a bright-line distinction between citizen suspects and illegal combatants. Bush, the fascist cretin who couldn't pronounce "nuclear," set up an analytical structure wherein it was clear that citizen suspects were owed the full panoply of constitutional protections, and only terrorist illegal combatants were to be treated with lesser protections.

But Obama the Genius With the Nicely Creased Trousers has created a system wherein Mad Maxipad is sorta like me, as far as the law goes, and I, unfortunately, am sorta like him.

And instead of there being a bright-line distinction between us, I sort of have to trust that the Obama Administration will be restrained by its own conscience and judgment, because there isn't any strong paper command about this any longer.

And how are they doing so far?

Well, gee: If Breitbart's reportage is true, James O'Keefe was denied a lawyer for a full 28 hours.

Seems a pretty big departure from constitutional norms, doesn't it?

But, you know, just as Mad Maxipad is sort of a citizen deserving some but not all citizen rights, James O'Keefe is now sort of a terrorist also deserving some but not all citizen rights.

Which rights are still guaranteed? Which can be suspended in some situations? Who knows. It's all fuzzy.

And this, we are told, is progress. This, we are told, is an affirmation of the Constitution. This, we are told, should reassure us.

This, it is understood, should impress... someone.

But who is this meant to impress?

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posted by Ace at 11:39 AM

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