Shunting Constitutional Concerns Aside, Often Too Easily

April 22, 2013

by Jeremy Leaming

Unsurprisingly the Boston marathon bombings are fueling some of the basest thoughts among us, such as those emanating from Islamophobic pundits, and U.S. senators such as the stuff from South Carolina’s Lindsey Graham.

Sen. Graham, a reliably tired hawk, has been bellowing since last week that President Obama should declare 19-year-old marathon bombing suspect Dzhokhar Tsarnaev an enemy combatant. This is typical grandstanding for Graham -- grab ahold of any opportunity to embrace military tactics, which inevitably lead to a diminishment of liberties. So dub Tsarnaev an enemy combatant, toss due process aside and let federal government do its investigation largely smothered in secrecy. It may be too easy to dismiss Tsarnaev’s predicament when many understanably believe that tossing constitutional concerns aside for suspects like Tsarnaev is no big deal since obviously the vast majority of people could never find themselves in similar circumstances.

But that’s a terribly weak line of thought. Constitutional rights apply when invoked, they’re inherent; and not effective only when convenient or for the privileged.

Chairman of Armed Services Committee Sen. Carl Levin (D-Mich.) has also noted the obvious – there is no evidence yet that the Boston bombings suspect is tied to al Qaeda, the Taliban or other government-determined terror groups.

Levin says, “I am not aware of any legal basis at this point for such a designation in this case. Under the law of war, we have the authority to detain individuals who join a hostile foreign force engaged in attacking the United States.”

More importantly, the granting of such sweeping federal powers to detain suspects in very broad manners is harmful enough. The expanded executive powers to conduct an ongoing war on terror have, as many have already noted, not been terribly conducive with liberty.  Hisotrians have noted war is rarely if ever compatible with sustaining robust liberty, if liberty at all. Moreover, military campaigns eventually crumble because of the harm caused to liberties. George Orwell wrote: "The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”

So here you have, thanks to a South Carolina senator urging a hawkish president to once again give little weight to the Constitution, instead to rely heavily upon and use the military and intelligence industries.

And why should Graham be clamoring for a total trampling of constitutional rights, such as the Fifth Amendment’s right against self-incrimination? Although Tsarnaev has the constitutional right to an attorney, even if he can’t afford one, to help defend him against criminal charges, the federal government has made that right more exclusive.

As Slate's Emily Bazelon notes, the Obama administration has created a public safety exception to the Fifth Amendment’s Miranda safeguards, like the right to remain silent or that an attorney be present during questioning. The exception says that if the suspect is a threat to “public safety,” the federal government can keep the suspect detained indefinitely and question him in about any way it sees fit. We can be promised the suspect won’t be harshly interrogated, but the government under this exception doesn’t have to tell us anything.

Bazelon provides the history of how the federal government in its escalation of a never-ending war on terror has come to the point of further weakening constitutional rights, in this case the Fifth Amendment’s protection against self-incrimination, which is central to protecting due process.

In the case of Tsarnaev, Bazelon concludes because of the heinous nature of the accusations – and most accusations against terrorist acts are anything but – it is easy for a justifiably aggrieved public to give little concern to the accused’s constitutional rights. That however leads to a government always ready to wield confidently, for good or ill, its powers.

“And besides, Bazelon writes, “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.”