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December 02, 2010

Lindsey Graham: Keep GITMO Open And Hold Military Commission Trials There; I'm Voting Against The DREAM Act

Wow. At Hot Air, Lindsey Graham is gettin' right with Jesus.

If Graham became more of a conservative, I could get behind him and forgive him. I like his tone and his thoughtfulness... except when he's calling us "bigots" and such.

But he has to get a lot more conservative, or else he's gotta go. Let him be a pundit or elder-statesman type if he wants to be a maverick.

His new tone on immigration is welcome. He wants the border sealed and our Visa system fixed before any amnesty sort of deal goes through.

Oh, and he wants to push a law forbidding funding of any civilian trial of KSM or any other 9/11 conspirator, and change Miranda law so that terrorist suspects aren't given a lawyer or read their rights for a "period of time." Like three or four days, I figure. Maybe a week.

That last bit is so obvious it hurts. Bear in mind, the penalty for not reading someone his Miranda rights isn't that that person goes free, but that incriminating statements solicited in absence of the Miranda statement can't be used as trial. Even without a law like this, it makes sense as far as a trade-off to just write off any chance of getting a court-admissible admission and interrogating the hell out of him anyway. Not for use in court, but for use in intelligence/warfighting.

But it makes sense to formalize it as a law, too, and change the law some too. For example, there's a doctrine called Fruit of the Poisonous Tree. If you elicit information from a non-Mirandized suspect which then leads to the discovery of, say, physical evidence against him (the murder weapon, say), then the Fruit of the Poisonous Tree doctrine says that not only is the admission barred from introduction in court, but so is the murder weapon. (The fruit of the poisonous tree, get it?) This is subject to some caveats (prosecutors can prove "inevitable discovery," that they would have found the weapon anyway, even absent the confession, for example), but that's the main line of the law.

Now, that's Court doctrine, but a statute about terrorist suspects specifically can be crafted that says non-Mirandized interrogations will not produce confessions allowable in court but fruit of the poisonous tree doctrine will not apply to evidence collected via information obtained from such interrogations. It's a bit of compromise, could fly. It maintains the core idea against self-incrimination while getting rid of the very arguable and not truly core stuff that's grown up around it.

Stuff like that would be helpful.

Update: AllenG objects that enemy combatants caught on foreign soil should never be Mirandized.

But wait! I agree with that! I specifically have in mind the Christmas Bomber, caught on U.S. soil, who was Mirandized and given a lawyer within two hours or less (I forget how long) and of course shut up.

That's the situation I'm talking about where a new law could help free up law enforcement/CIA interrogators to question a terrorist suspect, even one captured on U.S. soil, without violating the pretty-important constitutional guarantee against self-incrimination.*

* Actually by its own terms that applies at trial only but the Court has ruled that, in practice, if someone gives a videotaped confession at a police interrogation room which is subsequently admitted at trial, that's close enough to compelling a confession at trial. Same practical effect. It's just that the event happens outside the courthouse.

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posted by Ace at 03:50 PM

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