The constitutional rights of foreign terrorists

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Shortly after the attempted Christmas Day bombing of Northwest Airlines Flight 253 over Detroit, the battle began in earnest over whether or not alleged underpants bomber should have been read his Miranda rights.

The first to go after the Obama Administration for providing the rights granted by the Fifth Amendment was Tom Ridge, former Secretary of the Homeland Security. Appearing on The Larry King Show three days after the attempted attack, Ridge said –

I take a look at this individual who has been charged criminally, does that mean he’s going to get his Miranda warnings? Does that mean the only kind of information we want to get from him is if he volunteers it. He’s not a citizen of this country. He’s a terrorist, and I don’t think he deserves the full range of protections of our criminal justice system embodied in the Constitution of the United States.
Via TPM

Ridge’s comments were followed two days later by Vice President Dick Cheney who told Politico –

As I’ve watched the events of the last few days it is clear once again that President Obama is trying to pretend we are not at war. …. He seems to think if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won’t be at war.
Via Politico

Even an alleged liberal like me has to acknowledge that Ridge and Cheney might have a point when it comes to giving foreign terrorists the same rights as those afforded by the Constitution to Americans.

There’s just one problem – the law.

While the GOP has sought to gain maximum political points as a result of the FBI reading the alleged bomber his rights, they fail to point out that these government agents were following the law, complete with the knowledge that had they not Mirandized their prisoner he could end up going free.

I can hear you conservatives out there screaming at your screens. How can a foreign terrorist possibly be entitled to these Constitutional protections? They aren’t even Americans!

Well folks, while I neither wrote nor interpreted the laws in question, I do know that when the Supreme Court of the United States says something is the law, that’s the way it is until someone gets around to changing it.

We begin with the 2001 Federal Court Opinion issued in United States vs. Usama Bin Laden, et al. This case involved a motion brought by defendant, Al-‘Owhari, a foreign national captured and questioned in Kenya after being accused of committing a terrorist act against the United States.

In granting this defendant’s motion to suppress certain evidence – statements he made under interrogation –the Federal District Court for Manhattan held as follows-

We conclude that such a defendant, insofar as he is the present subject of a domestic criminal proceeding (emphasis added), is indeed protected by the privilege against self-incrimination guaranteed by the Fifth Amendment, notwithstanding the fact that his only connections to the United States are his alleged violations of U.S. law and his subsequent U.S. prosecution. Additionally, we hold that courts may and should apply the familiar warning/waiver framework set forth in Miranda v. Arizona, 384 U.S. 436 (1966), to determine whether the government, in its case-in-chief, may introduce against such a defendant evidence of his custodial statements — even if that defendant’s interrogation by U.S. agents occurred wholly abroad and while he was in the physical custody of foreign authorities.
United States vs. Bin-Laden, et al.

Like it or not, that’s a pretty clear statement of the law.

Since this was an opinion issued by the lowest rung on the Federal court chain, and determined by a Judge appointed by Jimmy Carter, there is no doubt some grumbling about this liberal, activist judge who cares more about terrorists than he does about the safety of Americans.

But, as it happens, the United States Supreme Court has been far from silent on these matters – and you may not like what they’ve had to say either.

To trace the history of what the highest court in the land has held on the subject of how we treat foreign nationals charged with terrorist crimes against the United States, we go back to 2001 when President Bush first asserted the Executive Branch’s authority to try captives taken in the war on terror before military commissions. A few months after Bush pronounced his intentions, Guantanamo Bay was opened with a further assertion by the Administration that the Guantanamo Naval Base was not on U.S. soil and, therefore, those detained at the location were not entitled to rights under the U.S. Constitution or entitled to the protections of the U.S. Judicial System.

The Supreme Court did not agree.

In Rasul v. Bush, 542 U.S. 466 (2004), the Court held that the Naval Base at Guantanamo was not beyond the jurisdiction of the U.S. Courts and that the detainees, in fact, had every right to avail themselves of the protections of the Constitution and the judicial system.

While a bit more hamstrung as a result of the Court’s ruling in Rasul, the Bush Administration continued using military tribunals to deal with alleged terrorists being held by the U.S.

The Supremes took this matter up again in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), a habeas corpus submission. Again, the Court knocked down the Administration by ruling that the Executive Branch lacked the Constitutional authority to set up military commissions to try captives taken in the war on terror, stating that only Congress had the authority to do so.

That case resulted in ten alleged terrorists being set free.

Congress got the hint and, later that year, passed the Military Commissions Act which created military tribunals to try alleged terrorists in a manner similar to what the Bush Administration had been doing before the Supreme Court told them to lay off.

Case closed? Not a chance.

In 2008, the matter of Boumediene v. Bush reached the Supreme Court. Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, was being held in Guantanamo as an enemy combatant. Boumediene challenged the legality of his detention at Guantanamo as well as the constitutionality of the Military Commissions Act (MCA) of 2006.

In holding for Boumediene, conservative Justice Anthony Kennedy, writing the majority opinion, wrote that the prisoner had a right to the habeas corpus under the United States Constitution and that the Military Commissions Act was an unconstitutional suspension of that right. The Court also held that, based on the previous case precedents, the fundamental rights afforded by the Constitution extend to Guantanamo.

So, can you blame the FBI agents in Detroit for reading the alleged terrorist his rights? Can you blame the Justice Department for following the dictates of the United States Supreme Court, as is their solemn responsibility?

You may not like the state of the law – but there is no reason to criticize either the current Administration or anyone else for following the law. To do so is grossly disingenuous and reveals either a complete ignorance of the law or a wanton disregard for the same in furtherance of personal, political gain.

And yet, it is the very political leaders who have built their careers on their professed respect for the Constitution and the importance of the law that now attempt to subvert it for political gain.

If you don’t like the law work to change it.

But don’t pretend you hold dear the principles of the Constitution – and our system of enforcing those principles- as you scream bloody murder when the law doesn’t suit you.

Fortunately, that’s just not the way it works in a nation of laws.