What rights should Dzhokhar Tsarnaev get and why does it matter? The Obama DOJ says it intends to question the Boston bombing suspect "extensively" without first Mirandizing him
by Glenn Greenwald
The Guardian
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It's certainly possible to object to Graham's arguments on pragmatic grounds, by advocating that Tsarnaev should be eventually Mirandized and tried in a federal court because it will be more beneficial to the government if that is done. But for anyone who supports the general Obama "war on terror" approach or specifically his claimed power to target even US citizens for execution without charges, it's impossible to object to Graham's arguments on principled or theoretical grounds. Once you endorse the "whole-globe-is-a-battlefield" theory, then there's no principled way to exclude US soil. If (as supporters of Obama's terrorism policies must argue), the "battlefield" is anywhere an accused terrorist is found and they can be detained or killed without charges, then that necessarily includes terrorists on US soil (or, as Graham put it, using one of the creepiest slogans imaginable: "the homeland is the battlefield").
Recall, in fact, that the Democratic-led Senate enacted the 2011 NDAA, which was then signed into law by President Obama, that codified the power of indefinite detention even of US citizens on US soil accused of terrorism (that's what led a federal court to enjoin the law on the grounds of unconstitutionality). It is true that Obama said that, as a matter of policy, he would not exercise these powers against US citizens on US soil, but that's simply a pragmatic choice that can be changed at any time. The theory of the NDAA is the same theory as Graham yesterday invoked, which in turn is the same theory animating the Obama "war on terror": the US is "at war" with The Terrorists, and anyone who takes up arms against the US and tries to kill Americans are "combatants" who can be denied basic rights. Watching Democrats mock Graham, while supporting Obama's policies based on the same theory, is truly surreal.
Finally, consider how radically Obama's "war on terror" has altered political opinion. As noted, even the narrow "public safety" exception to Miranda was the work of mostly right-wing Supreme Court justices who long hated Miranda. For that reason, it was loathed by liberals, including Thurgood Marshall, who viewed it as a stealth attempt to destroy Miranda. Yet now, the Obama administration has radically expanded even that once-controversial exception by claiming the power to question suspects without Miranda warnings far beyond what even those conservative justices recognized (as the Obama DOJ put it: "There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary").
Now, the cheers for this erosion of Miranda are led not by right-wing Supreme Court justices such as William Rehnquist (who wrote the opinion in Quarles), but by MSNBC pundits like former Obama campaign media aide Joy Reid, who - immediately upon the DOJ's announcement - instantly became a newly minted Miranda expert in order to loudly defend the DOJ's actions. MSNBC's featured "terrorism expert" Roger Cressey - who, unbeknownst to MSNBC viewers, is actually an executive with the intelligence contractor Booz Allen - also praised the DOJ's decision not to Mirandize the accused bomber (if you want instant, reflexive support for the US government's police and military powers, MSNBC is the place to turn these days).
Leave aside how misleading and misinformed this defense is: the DOJ's policy, as documented, is to go well beyond that 1984 "public safety" exception and the DOJ clearly intends to do so here. It's just so telling how this doctrine, in the age of Obama, has been transformed from hated right-wing assault on Miranda rights to something liberals now celebrate and defend even in its warped and expanded version as embraced by the Obama DOJ. Just 30 years ago, Quarles was viewed as William Rehnquist's pernicious first blow against Miranda; now, it's heralded by MSNBC Democrats as good, just and necessary for our safety, even in its new extremist rendition. That's the process by which long-standing liberal views of basic civil liberties, as well core Constitutional guarantees, continue to be diluted under President Obama in the name of terrorism. Just compare the scathing denunciation of this Miranda exception by Marshall, Brennan and Stevens to the MSNBC cheers for it in its enlarged form.
Needless to say, Tsarnaev is probably the single most hated figure in America now. As a result, as Bazelon noted, not many people will care what is done to him, just like few people care what happens to the accused terrorists at Guantanamo, or Bagram, or in Yemen and Pakistan. But that's always how rights are abridged: by targeting the most marginalized group or most hated individual in the first instance, based on the expectation that nobody will object because of how marginalized or hated they are. Once those rights violations are acquiesced to in the first instance, then they become institutionalized forever, and there is no basis for objecting once they are applied to others, as they inevitably will be (in the case of the War on Terror powers: as they already are being applied to others). As Bazelon concludes:
"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."
Leave aside the fact that Dzhokhar Tsarnaev has been convicted of nothing and is thus entitled to a presumption of innocence. The reason to care what happens to him is because how he is treated creates precedent for what the US government is empowered to do, including to US citizens on US soil. When you cheer for the erosion of his rights, you're cheering for the erosion of your own.
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