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Tuesday, May 04, 2010

The Constitution and the Times Square Car Bomber

Faisal Shahzad, the Times Square Car Bombing suspect, has been caught and will predictably enough be routed through all the formal legalities reserved for Islamic terrorists trying to kill Americans. He will get a criminal trial, a lawyer and a jail sentence after which he, like so many of his compatriots will be released to try and kill again. And quite possibly sooner than anyone might think.

Meanwhile on FOX, Glenn Beck protested the idea of denying a Miranda Warning to Shahzad because he is a US citizen and "you don't shred the constitution." Obviously Beck isn't very familiar with the Constitution, because at no point in time does it mandate a Miranda warning, or compel civil trials for armed insurgents. Instead Beck has confused the Miranda Warning, one of the Warren court's judicial innovations with the Constitution. This is a mistake commonly made by liberals and those who have not educated themselves regarding what the Constitution actually says.

The Warren court pursued its radical agenda of judicial activism by creating an entire spectrum of "rights" based on spurious readings of the Constitution. Warren's technique was simple enough. He would take the actual Constitution and reinterpret the text to suit his political agenda. The actual ruling was not anything that the Framers had ever intended, and had nothing to do with the actual purpose the text was meant to serve. It was just a convenient hook to hang his ruling on.

Take Cruel and Unusual Punishment, which had been meant to ban all sorts of hideous executions and tortures that had been practiced in Europe. The Warren court used it to ban the denaturalization of a army deserter and to rule that imprisoning heroin addicts is illegal, because their addiction is a sickness, not a crime. This had nothing to do with the Eight Amendment of the United States Constitution which was meant to ban certain painful physical punishments, not to control whether junkies could be taken off the street or defectors could be deprived of citizenship. Instead it was used by the court to ban the death penalty for rape, to ban the death penalty for 17 year old murderers, and temporarily the idea of the death penalty itself.

The Miranda Warning that Beck insists is in the Constitution is based on a similarly spurious reading which made the leap to arguing that questioning a suspect without informing him of his rights, such as the aforementioned Ernesto Arturo Miranda, a serial rapist, was the equivalent of denying him those rights. The court's argument in Miranda was that being taken into custody is so intimidating that it is essentially a form of compulsory self-incrimination.

For Beck to argue that a failure to Mirandize "shreds the Constitution" would mean that he seriously believes that the Constitution had been shredded all along until 1966 when Earl Warren fixed it by adding the requirement of a Miranda Warning. This is a belief widely held on the liberal side of the aisle, but I don't think Beck believes that. He is simply following the widely held liberal indoctrination which treats the rulings made through Judicial Activism as equivalent to the actual text of the Constitution.

In his dissent Justice Harlan warned quite accurately that; "I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell" and pointed out that this was not a ruling meant to prevent abuse, but to protect abusers; "The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion... Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all."

And Harlan pointed out the risks of treating such a criminal rights agenda as Constitutional. "To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains."

All this applies rather glaringly to terrorists, where the question goes well beyond mere criminal conviction. The bottom line is that we are at war. Not with a single serial rapist, but with a fanatical Islamic ideology that like Communism before it, demands world conquest.

Faisal Shahzad was naturalized barely a year ago. Does anyone seriously believe that before this time he did not hold whatever views impelled him to try and set off a car bomb in Times Square? Does being an enemy combatant who took US citizenship under false pretenses entitle him to full immunity?

The Bill of Rights was intended to preserve the rights of Americans, not of enemy combatants masquerading as something they are not. An Islamic terrorist has by definition taken a false oath, as he certainly does not bear "true faith and allegiance" to the United States. He had no intention of defending it against its enemies. He is one of its enemies.

During WW2, Nazi Germany sent a number of saboteurs into the United States, one of whom was a US Citizen. They were not given Miranda Warnings, obviously. They were not treated with kid gloves. They were tried by a military tribunal and executed less than two months after they arrived in the United States. Read that again. Less than 2 months. If you want to understand why we won WW2 and are losing the war now, consider the implications of what you just read.

The old United States could take an enemy combatant, arrest him, try him, run the decision through the Supreme Court, and still execute him in under two months. We're lucky if we can bring a captured terrorist to trial after 7 years. At which point we release him on time served and send him back to fight us again. If we had Osama bin Laden sitting in the dock right now, if he confessed to every crime and begged for the death penalty, it would probably still take us at least a decade to execute him, assuming we could even find a jury that would vote for the death penalty for him.

And Miranda is one of the reasons why. Not so much Miranda itself, as the agenda behind it. The agenda that gives the murderer every form of defense and discretion, and provides none to his victims. The agenda that rewards evil, but punishes good.

The fact of the matter is that it was common practice to treat spies, saboteurs and pirates as unlawful combatants who were tried by military tribunals and executed at will, regardless of whether their disguise included US citizenship or not.

In the case of the WW2 saboteurs, Ex parte Quirin, the court stated that;

...entry upon our territory [317 U.S. 1, 37] in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States.

Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.

The only remaining objection to treating Faisal Shahzad as an enemy combatant is that there is no "declared war" and thus there can be no enemy combatants. This is a basic fallacy that relies on the fact that we are not fighting individual nations, but rather an ideology. We have come as close as possible to declaring war, within that limitation. Islam is not an enemy state, just as Communism is not an enemy state. It is a war waged by followers of a global ideology who number in the hundreds of millions. The language of conventional wars fought by one nation against another cannot encompass this.

But those who would condemn the War on Terror as illegitimate because it is not against a named state, had better be prepared to argue that the Tripolitan War fought against Muslim pirates without a formal Declaration of War under Thomas Jefferson, their destruction supported by George Washington, was equally "Unconstitutional".

Jefferson's push for an international alliance and his eventual determination to go it alone, arguably made him the first Neoconservative. The likes of Ron Paul might castigate the Founders as "Unconstitutional" because they fought the Tripolitan War without a declaration of war, assaulted the sovereignty of the Pasha of Tripoli, and didn't read anyone their Miranda Rights, but I don't think anyone else in their right mind would. And the War on Terror has been more formally declared than the Tripolitan War.

Indeed what warmonger neoconservative was it that said; "Would to Heaven we had a navy able to reform those enemies to mankind or crush them into non-existence". Was it Dick Cheney? No, I'm afraid it was George Washington, who would no doubt be pilloried today for his genocidal rhetoric in the editorial pages of the modern New York Times and the op eds of Pat Buchanan on AntiWar.com. But Washington was a man of peace as well as a man of war, and he understood that there are times when "war is not of our choice." This is one of those times.

There's something fundamentally wrong when people who should be conservatives instead start talking like ACLU lawyers. Start believing that Miranda is a Constitutional right, rather than a bit of judicial activism legerdemain. Start thinking that we should be fighting the War on Terror by following the model of the American Bar Association, rather than that of Washington, Jefferson, FDR and every wartime President between them.

The Constitution was never intended to serve as a suicide pact. It was never intended to protect enemies of the United States under the colors of the flag. Its Bill of Rights protected the rights of Americans, not the rights of its enemies. Our laws exist in order to safeguard the rights of Americans. When they are exploited to aid those who deprive Americans of their lives and liberties, then they have been undeniably perverted to play a role opposite to that of their original purpose. The work of the Warren Court is a comprehensive illustration of laws turned in on themselves. No country can have or maintain laws inimical to its survival for very long. And a country that protects its enemies will eventually fall by their sword.

8 comments:

Thomas G Lee said...

Recall how fast (relatively) we executed McVeigh? If he has been from a Muslim country, do you think he would still be sitting in prison waiting his "execution"? I do.

Speaking of McVeigh... several years ago I read a book by Jayna Davis titled, "The Third Terrorist". Have you ever read the book? The more and more I see failed bombing attempts by people "trained overseas" the more I doubt McVeigh could have pulled off what he is supposed to have pulled off by himself. The book I mentioned does a very good job of showing how McVeigh had help from Iraqi agents. That must be why Clinton continually refers to McVeigh... he's trying to convince himself, by repeating the lie enough times, that McVeigh truly was a right-wing domestic terrorist when in reality, he worked in concert with radical Islamists.

Anonymous said...

Great article. I did not know this and I appreciate your efforts to keep us educated. I was thinking this morning, something is not right about reading this guy miranda rights and treating him like a Citizen.

Marlene said...

I think that after a few days of contemplation (his staff doesn't agree with him on this one either) Glenn Beck will change his point of view. Once he realizes that
"He is simply following the widely held LIBERAL INDOCTRINATION which treats the rulings made through Judicial Activism as equivalent to the actual text of the Constitution." he will see his mistake. Mark my words.
He is self-taught, unlike you Daniel. I, as always, stand in awe! Is there any subject you are not an "expert" in? Hashem has certainly blessed you with many gifts.
I don't know how we can educate an entire country on this issue in the next few weeks. This is going to be argued ad nauseum. Everyone believes that being Mirandized (in other words fairness) is what America is all about.

Daniel Greenfield @ the Sultan Knish blog said...

It's a symptom of how quickly people come to accept a fairly recent liberal narrative and history is rewritten

jewishamericanpatriot said...

The Miranda Rights issue presents a salient argument that even a liberal would have to think about.
The frightening thing is that such blatant disregard for our country's welfare most likely means that there are enough crooks and traitors in our government in bed with our self declared enemy.

Keli Ata said...

Thomas--Personally, I think the radicals in the various Christian Identity groups are too racist to associate with Islamic terrorists. I do, however, believe more than two people were involved in the Oklahoma City bombing. I wouldn't rule out the possibility but there's a plethora of information online that can be used by domestic terrorists like McVeigh.

I wouldn't rule it out but I think the CI groups are acting on their own.

*****
Miranda Rights should apply only to citizens. Terrorists in the US should be turned over to the military for trial/punishment/incarceration.

They should not be tried in US criminal courts.

Thomas G Lee said...

Keli,

I would say you're correct in that Christian Identity groups are probably too racist, but McVeigh never aligned himself with a Christian Identity Group. He never really aligned himself with anything but anti-government. Furthermore, you're forgetting the old adage, "the enemy of my enemy is my friend". I personally know an ex "Crip" member that was once on the run from the law. Where did he hide out to avoid capture? He his out with his Aryan brothers in crime. Sure, they didn't like him and he didn't like them, but they both served a means to an end for each group. They worked in concert together in running drugs and so each would often use the other to avoid capture by the police as the police were a larger enemy. He has since changed his ways, but he will often relate his story as an example of how strange bedfellows are often made in the criminal/anti-establishment world.

Keli Ata said...

Excellent points, Thomas.

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