Malacandra.me

Did we learn anything from the Bush Administration’s disregard for constitutional principles?

Did we learn anything from the Bush Administration's disregard for constitutional principles?

by digby

Or were they simply normalized? We're about to find out.

Yesterday I wrote that I hoped the American people would keep their wits about them this time and see this as an opportunity to prove to the world (and ourselves) that we are a civilized nation that lives under the rule of law. I was rather elated when I heard last night that they had captured the Boston Bombing suspect alive, thinking we might just have a chance.

But not everyone is on board, not by a long shot. Check out this video of John Bolton very casually assuming that this suspect must be designated an unlawful combatant and anything less would a dereliction of national security. This idea of treating this citizen as an enemy combatant is so prevalent on Fox News, I literally watched for hours and heard not one person raise even the slightest misgivings about stripping this person of his constitutional rights. It's tossed off casually by Senators and pundits and ex-government officials as if it's just a matter of common sense.

The pressure is going to be intense to deal with this suspect outside the normal boundaries of the law. Indeed, they are already treating him differently than anyone suspected of another crime by refusing to Mirandize him. This is the "new normal" in terrorism case, which Emily Bazelon describes in this excellent piece on the erosion of the Miranda ruling under both Bush and Obama. Everyone seems quite content to allow federal law enforcement to decide when these constitutional protections need to be applied and when they don't.

The problem is that once you allow the government to carve our exceptions to our rights, there is no logical reason why they should stop at people suspected of "terrorism" however they choose to define it today. I wrote about reams about this back in the days when the Bush administration was pushing its limits. This was one satiric take on the Jose Padilla case that, unfortunately, apparently still applies:


That whole fourth and fifth amendment thing was only put there because back in the olden days we had kings who would falsely imprison people for political reasons. Needless to say, that could never happen now. Great Americans like John Ashcroft and Dick Cheney would never take advantage of the American people's fears by saying that they have captured a dangerous terrorist soldier who was trying to kill them unless it were true. And they do not make mistakes about things like that. They are good people. There is no reason to fear the misuse of government power against its citizens so let's take that off the table right now.

All of which makes me wonder how much better off we'd be if we didn't have to deal with those inconvenient legal rights and due process to begin with? I know that potentially blowing up an apartment building is a heinous act of terrorism, but suppose we arrested a member of a criminal gang who was planning to blow up the very same apartment building for the insurance money? That would just be considered plain old murder so we'd have to let the guy speak to a lawyer and face a judge. But, the result would be exactly the same. A bunch of innocent people would potentially be dead and we would not have been able to stop this heinous mass murderer because our stupid constitution forced the government to allow him due process. Not to mention that we couldn't have sufficiently leaned on him to extract a confession in the first place! I'm hard pressed to see how the families of the victims would see the distinction between a normal old "crime" and terrorism.

Why should any potential murderer or informant be allowed to use this excuse of "due process" simply because he hasn't been to Afghanistan? Why should innocent people ever be put at risk?

If there's one thing the Jose Padilla case is teaching us is that it's long past time we started calling all criminal suspects what they really are --- unlawful combatants. All criminals disrupt our way of life and hurt innocent people for their own gain. Is that not the very definition of terrorism?

The founders obviously just didn't comprehend what problems they would cause when they wrote the bill of rights. Of course, they didn't have crime and terrorism in those days to deal with, so they couldn't have known how restrictive their naive little document was going to be on future generations. I'm just glad we finally have a government that's willing to show some moxie for once and ignore these outdated sacred cows in our constitution. I would imagine they'd have the founders deep respect for doing so.

I'm fairly sure that John Bolton, Lindsay Graham and the rest of the Fox News gasbags who've been yammering about the necessity of designating the Boston suspect an "unlawful combatant" quite earnestly agree with that. Because underneath their rebel patriot poses, they are authoritarians. I'll be curious to see how many alleged liberals hold hands with them this time. (Last time there were many ...)

And as the shocking and sadly overlooked independent report on America's torture regime released last week showed, all these constitutional erosions led to a horrible episode in our history that remains unresolved or even officially acknowledged:

The report lays the blame fully at the feet of the current administration, for covering up what happened and stifling any sort of national conversation on the topic -- and the media, for splitting the difference between the facts and the plainly specious argument made by torture regime's architects that what occurred should be defined as something other than what it so obviously was.

The report points out, as I have in the past, that neither Obama nor Congress have done a thing to make sure that, the next time a perceived emergency comes up, some other president or vice president won't decide to torture again.

Obama's policy of "looking forward instead of looking backward," in this light, is exposed as a cover-up that is actually holding the country back from a crucial period of self-understanding, and growth.

In fact, President Obama unequivocally proclaimed "the United States doesn't torture." But it certainly does --- when it wants to. Just pulling back the executive orders that excused the practice  doesn't seen to have stopped the impulse to make new rules whenever it's convenient, as the evolving Miranda exceptions prove.

The question will be if the Obama administration uses this opportunity to bring some sanity back to our response to terrorism or goes along with the demands of the right wing. Now is the chance for the President to make good on his promises to use our legal system to prosecute terrorism.

Unfortunately, the capitulation on Miranda warnings is not a good sign --- for any of us. As Bazelon also points out, the implications for any citizen are stark:

There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, 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.
This is why we have a bill of rights in the first place. Nonetheless, there is no reason to believe that our legal system is incapable of delivering justice in this case or any other, as long as the checks and balances and the rule of law are applied fairly and openly. (Lord knows we have enough people in prison to prove it's capable of finding someone guilty.) The system is imperfect, but it cannot be perfected by bypassing the constitution.  In fact, doing that makes a mockery of the whole thing.

This person is charged with committing a heinous crime on American soil which means this really is not complicated at all.  The bill of rights clearly applies along with all other protections accorded to criminal suspects under the constitution. It shouldn't even be a question. And the fact that it is means we still have a long way to go shake off our panic and infantile retreat to authoritarian illusions of "safety" after 9/11. I'm afraid if we don't do it soon we won't ever be able to.