The New York Times just reported that Dzhokhar Tsarnaev will be tried in a civilian court. Thank God for small favors. Really, there should have been no question. Unfortunately, there are a lot of people in the United States who are hellbent on destroying the United States Constitution, even while they claim to love it. And the current occupant of the White House is one of them.
Over the weekend, Glenn Greenwald discussed the Democratic and “liberal” responses to Lindsey Graham’s tweet, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.'” Although Graham’s tweet is repellent, it goes right along with Obama administration policy over at least the last two years. Greenwald is genuinely confused about how Democrats can support the president when he does it but oppose it when Graham calls for it. To me it is very simple: Democrats trust that Obama would only use such powers in extreme situations. And this is not that bad an assumption as can be seen in this recent news about a civil trial. The problem, of course, is even if we should always trust Obama (and I don’t think we should), eventually, the White House will be occupied by someone more like Bush Jr or Dick Cheney. Giving these powers to Obama is giving them (And more!) to every future decider.
Yesterday, Ari Melber wrote an excellent article for Reuters, Can Tsarnaev Be Ruled an ‘Enemy Combatant’? In it, he discusses three major legal questions that relate to this case. The first question is the title of the article: can this young man be treated as an enemy combatant? Melber says that in general he can’t. The only authority the president has to do this comes from the 11 September 2001 authorization of force. And to use this, the government would have to directly link Tsarnaev to al Qaeda or the Taliban.
I find the entire question offensive, but entirely America. We have defined a new term, “enemy combatant.” This places anyone we like in a no man’s land between civilian (where civil courts are in power) and soldier (where the Geneva Conventions are in power). Thus, we can effectively disregard hundreds of years of habeas corpus, even while we still maintain that the United States is the land of liberty. And what is it exactly that people like Graham and McCain think they get by pretending we are in some kind of traditional global war? It reminds me very much of Jeff Trent in Plan 9 from Outer Space. When told about a bomb we are about to develop that will destroy the universe, he says, “So what if we do develop this Solanite bomb? We’d be even a stronger nation than now!” “Belligerent” and “dangerous” are not synonyms for “strong.”
Melber’s second legal question is whether being an accused terrorist should change what legal rights Tsarnaev is given. (I know: rights are not supposed to be given. Mark that down on the list of lies you were taught in civics.) It is on this question that the Obama administration (with little push back from “liberals”) has been really bad. In 1984, the Supreme Court found that Miranda Rights did not have to be given to a suspect if there was a public safety concern. For example, “Are there any more bombs? Is your apartment booby trapped?” I don’t even understand why the court allowed this exception. Police can ask any questions they want. Miranda only matters when it comes to which statements are admissible in court. I don’t see any reason why these necessary public safety questions need to come up in court. But as Liberal Viewer noted last night, Deval Patrick has said there is no danger, so there really is no justification for the “public safety” exception.
Regardless, this exception has only ever been allowed for a matter of minutes. The longest time ever was 50 minutes. But in 2010, the Obama administration announced that it would seek the legal authority to never give Miranda Rights to terror suspects. And that is Melber’s third legal question. Instead of going to Congress, Obama did what the Bush administration was so good at: make up the rules themselves—which they did in March 2011. The problem, as Melber points out, is that the Obama administration is a lot smarter than the Bush administration. Bush was publicly slapped down by none other than Antonin Scalia. But Obama pushes the envelope and thus gets away with it.
The common reaction is, “So what? They’re just terrorist?” Of course, the point is that they are terror suspects. But that aside, there are important reasons to care, as Ari Melber makes plain:
A great weight of evidence shows that programs which unilaterally revoke the rights of a class of citizen, or suspect, rarely remain very limited. As Yale law professor Jack Balkin has documented, when governments erect a parallel track of reduced rights to combat terrorism, the conventional law enforcement system faces a huge temptation to “increasingly [follow] the parallel track.” It’s not only the “bad guys” that have to worry about the government’s powers. In the areas of indefinite detention, drone targeting and Miranda, the administration is uncorking temptations that require a much deeper public debate.
There is one final wrinkle in the external constraints at work here. Bush set the bar so low, many influential political analysts have suggested his successor deserves praise simply for not breaking the law, for not operating black sites and not torturing people.
This is as absurd as it is depressing. Obeying the Constitution is a prerequisite for every president. Not a metric on which to be scored.
And that is an important point. Because we like Obama, we need to hold him accountable. Accepting him as “not as bad as Bush” does him a disservice as well as ourselves.