After Boston, Senators Aim to Deny Your Rights

In a statement released via Facebook, Senators Lindsey Graham (R-SC) and John McCain (R-AZ) made the case for (1) denying the Miranda rights of the Boston marathon bomber and (2) to hold him without trial as an enemy combatant, regardless of his status as a US citizen.

“Nonsense!” you may say, “They don’t want to deny my rights, just those of Dzhokhar Tsarnaev.” While this Dzhokhar guy is truly a first class piece of crap, selectively denying the rights of one US citizen “just because two Senators say so” is an affront to the liberties we all enjoy.

The statement, posted on Senator Graham’s Facebook page, reads in full (with emphasis added in bold):

Just put out this statement with John McCain about the suspect captured in Boston and whether they should be held as an enemy combatant.

“We truly appreciate the hard work and dedication of our law enforcement and intelligence communities.

“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans.

“Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

“We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.

We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.”

This is problematic for two reasons:
  1. By using the “public safety exemption” to the Miranda warnings, law enforcement can deny the extension of our Fifth Amendment right to not make any self-incriminating statements upon arrest. But as Doug Mataconis notes at Outside the Beltway, law enforcement are free to question Mr. Tsarnaev without Mirandizing him, so long as they don’t intend to use any of his statements against him in court.
  2. Declaring someone an “enemy combatant” – and then a “detainee” upon their seizure – finds legal ways around Constitutional rights – as Senator Graham states – as their legal status falls under the Law of War. Not only does the “enemy combatant” label resurrect a term ostentatiously abandoned by the Obama Administration in 2009, but deeming Mr. Tsarnaev an “enemy combatant” implies he is an agent of a state with which we are at war - BEFORE all the evidence has been gathered.
This second point is most concerning. By Senator Graham and McCain’s definition, wouldn’t the Aurora theater shooter be a “terrorist?” After all, the shooter James Holmes wanted to “injure, maim, and kill innocent Americans.” What violent act, then, would not classify as terrorism under the Graham/McCain definition? Who then, couldn’t be defined as an “enemy combatant” prior to a review of the evidence?

This is exactly what Graham and McCain want, though: All of America constantly under siege. And while these two are an embarrassment, they’re not alone.

The argument *not* to Mirandize terror suspects is the same case the Obama Administration made in 2010. Then in 2011, the Administration – with the help of Senators Graham and McCain – cobbled together the legal framework for the indefinite detention of – and indeed, the extrajudicial assassination of – American citizens. This permission was signed into law in Section 1021 of the National Defense Authorization Act of 2012, which extended the authority of the federal government to wage war wherever they want, and against whomever they want, under the ever-growing Authorization for the Use of Military Force Against Terrorists, signed on September 18, 2001.

As Adam Serwer said about NDAA 2012 at its passing:

“The reason supporters like Senator Lindsey Graham (R-S.C.) are happy with this bill is that it codifies into law a role for the military where there was none before. It is the first concrete gesture Congress has made towards turning the homeland into the battlefield.”

And as Senator Graham told Jennifer Rubin on Thursday:

“This (Boston) is Exhibit A of why the homeland is the battlefield. It’s a battlefield because the terrorists think it is.”

This is not the way we should be fighting “terrorism” – whatever that word means anymore, after the perversion it has withstood at the hands of McCain, Graham, and the Obama Administration. We should not allow incidents like Boston to terrorize us into acquiescing the natural rights we enjoy as Americans. On the contrary, we fight tyranny – whatever its source – simply by living freely.

Over a decade of doubling down on national security, we are not safer, only less free. We must remember what Ben Franklin stated; that “They that can give up essential liberty to obtain a little temporary safety, deserve neither.”

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