Thursday, May 6, 2010

Beck and Olbermann Get It Wrong

Miranda not Constitutional Right, Americans Can Be Tried by Military Tribunal
By Michael P. Tremoglie

Anytime MSNBC’s Keith Olbermann and Fox News’ Glenn Beck agree on an issue, then one must examine said issue very critically. Because it is very likely they are misinforming the American public.

Such is the case regarding the controversy of providing Miranda warnings to Times Square bombing suspect Faisal Shahzad. Both claimed Shahzad was obligated to receive the warnings because he is an American citizen. They both claimed that not providing Miranda warnings was the denial of Constitutional rights.

This is not true.

Apparently both watch too many police television dramas. Ironically, as a former police officer, one with a graduate degree in Criminal Justice and one who has been writing about law enforcement issues for the past fifteen years, I know that the Miranda warning is not a Constitutional right.

But ignorance is bliss and Keith Olbermann is a very happy man. Olbermann’s clownish antics have drawn ridicule from other liberals – most notably comedian Jon Stewart.

During his May 4, 2010 show Olbermann, a journalistic Elmer Gantry, chastised Sen. John McCain (R.-Ariz.), a man who heroically served his country, by saying McCain was shaming those who served their country.

Why?

Because Sen. McCain objected to Shahzad receiving Miranda warnings after being arrested. He felt the terrorist suspect should have been interrogated more before providing him counsel.

The righteously indignant Olbermann said this was un-American. He said, loudly, Shahzad, as an American citizen, could not be denied his Miranda rights.
According to Olbermann, a failure to do so means that one day McCain could be arrested and imprisoned without warning in an America that has suddenly become a totalitarian state.

Olbermann’s assertions are not true. He displayed his ignorance and a lack of faith in, and contempt for, American law and the American political process. His “slippery slope” argument is a well-known fallacy.
But the leftwing Olbermann was not the only one who was part of the misinformation campaign. Many on the right are just as clueless.
Glenn Beck, that same day, passionately beseeched his listening audience to listen to our Founding Fathers and not stray from the Constitution just because of the fear of terrorism.

Beck invoked the Founders to implore Americans not to let fear infringe on civil liberties. Shahzad is an American citizen; he said and therefore entitled to all the rights of American citizens. This includes being given Miranda warnings.

During a Fox news interview Beck also said, “He's a citizen of the United States, so I say we uphold the laws and the Constitution on citizens.” He also went on to say that Miranda warnings are a right in the Constitution.

Once again these assertions are totally false.

Conservative blogger Ed Morrissey went one step further. He said that since Shahzad is an American citizen arrested on American soil, military tribunals “are out of the question.”

This too is not true:

Let me provide some clarification about Miranda warnings.

No less an expert on the Constitution than Justice William Rehnquist wrote that Miranda is not a Constitutional right in his majority opinion deciding the 1984 Supreme Court case New York v. Quarles.

Rehnquist said, “Miranda warnings therefore are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.”’ (Emphasis added).

There are also three exceptions to Miranda warnings. One of them is applicable in this case.

If there is a question of public safety – in other words if there are exigent circumstances – Miranda warnings need not be immediately provided. They will be required later.

But under no circumstances would Shahzad have been denied Constitutional rights had he not been Mirandized. Indeed President Obama had the authority to declare him an unlawful combatant and that would be all that it took.

So, all the ringing of hands and mashing of teeth, about the concern for violating the Constitutional rights of a terrorist suspect, is mere ignorance and fear mongering.

Let me also clarify this assertion that military tribunals are prohibited.

Prof. Jeffrey Addicot, is a professor of law at St. Mary’s University Law School in Texas. He is also the Director of the Counterterrorism Center at St. Mary University in Texas.

An active duty Army officer in the Judge Advocate General's Corps for twenty years (he retired in 2000 at the rank of Lieutenant Colonel), Professor Addicott spent a quarter of his career as a senior legal advisor to the United States Army's Special Forces. He is an internationally recognized authority on national security law, terrorism law and human rights law, Professor Addicott not only lectures and participates in professional and academic organizations both in the United States and abroad.

He said there is plenty of law, sanctioned by the courts, and certainly Constitutional to deny Miranda warnings and Constitutional protections to terrorist suspects. This is true even if the suspect is an American citizen captured in the United States.

Addicott cited the case of Ex Parte Quirin. This involved an American citizen, Herbert Haupt, who was executed, after being tried by a military tribunal, during World War II. Haupt was convicted of being a Nazi German saboteur when he returned to the United States in 1942 planning to destroy war industries.

Americans must be careful that in their zeal to protect civil liberties, their paranoia about slippery slopes to totalitarianism, they do not trample on common sense and the Constitution of the United States.

The next time Beck wants to invoke the Founding Fathers maybe he should heed the words of the first Chief Justice of the United States, John Jay, who wrote in Federalist Number 3, “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first.”

2 comments:

  1. You obviously don't know history (or the law)...

    The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.

    Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.

    This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.

    Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."

    Note that one need not be Mirandized to be arrested. There is a difference between being arrested and being questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.

    As for Ernesto Miranda, his conviction was thrown out, though he did not become a free man. The police had other evidence that was independent of the confession, and when Miranda was tried a second time, he was convicted again. After release from prison, Miranda was killed in a barroom brawl in 1976.

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