Free Markets, Free People

Quote of the day – dumb politican edition, part II

Thank you for your service.  Now hush up and go home Sen. McCain:

“Obviously that would be a serious mistake…at least until we find out as much information we have,” McCain said during an appearance on “Imus in the Morning” when asked whether the suspect, 30-year-old Faisal Shahzad, a naturalized American citizen from Pakistan.

“Don’t give this guy this Miranda rights until we find out what it’s all about,” McCain added.

Really?  Is that the way it works now?

You may not like the law, Mr. McCain but that doesn’t mean you can selectively apply it – the SCOTUS has been very clear about doing such things. 

Of course, you have to remember, this is the same guy that was so concerned about campaign financing that he sponsored a law that trashed the 1st Amendment and then claimed he’d rather have clean elections than free speech.


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50 Responses to Quote of the day – dumb politican edition, part II

  • I can’t believe I’m defending Yosemite Sam, but…

    IF the guy is a foreign terrorist, then giving him Miranda rights is not only pointless, but self-destructive.  Perhaps determining Shazzam’s citizenship was what Yosemite meant when he said that we have to find out what it’s all about.

    On the other hand, waiting to Mirandize a citizen could easily result in his case being thrown out by a judge who was rightfully miffed to find that the police were (ahem) negligent in this regard.  Also, while I’m not in favor of playing nice with terrorists, we DO still have the law, and it should be followed.

    No matter how tough a primary fight we may find ourselves facing.

    • OK, docjim505 – you tell me what the law says federal agent must do when apprehending a criminal -any criminal. First thing. No BS? Then tell me what happens when they don’t do that?

      Also recall this guy was nothing more than a suspect when apprehended. He was Mirandized and then apparently admitted to the plot. What if he’d have admitted to it and hadn’t been Mirandized? Yeah, we’ve been through that before, haven’t we?

      Look we may not like it, we possibly want the law changed, but not observing the law could cost us more than its worth. And besides, who is McCain to arbitrarily decide when a law shouldn’t be applied? If he has a problem with this sort of a case, then pass a law to cover it. Carve out an exception – those yahoos are masters at doing that for pork. Until then, the law of the land says he gets Mirandized.

      • Miranda is not necessary unless your chief interest is criminal prosecution in a civilian court.

        From what I’ve seen to this point, there is a definite national security interest here that has nothing to do with criminal prosecution.

        If he is detained as an illegal enemy combatant (CINC’s prerogative), which he now appears to be, then he can be held on that basis and tried by a military tribunal, or later sent back into the civilian system, depending on the status of the national security interest.

        Treating this as a civilian crime is exactly the wrong way to go. That’s why we have always made a distinction between ordinary criminals and combatants, legal or illegal. And these can be difficult distinctions to make in the case of asymmetrical warfare, but there’s no deep mystery on this one.

        • Last I heard, the FBI apprehended criminals, not enemy combatants.

          Look, no one is saying this is perfect or the way it must stay, but you can’t go on about being a nation of laws and then arbitrarily throw them aside when they’re no longer convenient.

          McCain is in the perfect place to do something about it if he feels that strongly – but calling for law enforcement officers to ignore the law isn’t the way to go about it.

          • The FBI doesn’t have to formally arrest him. This goes right to the CINC, up the chain through Justice (past the idiot Holder). CINC can turn it around as a national security matter and designate this man be held by the military. And that doesn’t mean that the FBI’s services are no longer needed. It doesn’t foreclose anything like that. The FBI can continue to do what it does and even participate in interrogations, but neither they nor Justice would be the lead agency or supervise custody.

            Frankly, the way this is going, I would rather that they let him leave on the plane and be greeted by the CIA at the other end, but that would require the desire to fight terrorism, and that appears to be absent, other than in its nominal terms.

      • I see your point (reference my all after “On the other hand…”), but we’ve also been ’round and ’round about Mirandizing terrorists, giving them access to lawyers, etc., etc.  As I recall, there was considerable criticism of that fool Holder deciding to treat the Panty Bomber as a run-of-the-mill crook, which included Mirandizing him and giving him a lawyer; certainly I thought it a mistake.  The fact that there’s ambiguity in how we treat terrorist suspects nine years after 9/11 speaks to how lousy a job Congress has done on this issue, though in all fairness that stems from considerable debate / uncertainty among our people about what to do.  Should we torture terror suspects?  Read them their rights?  Try them in criminal court?  Military court?  Summary court martial followed by a firing squad?  Lock them up in a US prison?  Gitmo?  Some other overseas location?

        If we Mirandize a suspect, does this not imply an intent if not an obligation to continue processing him as a criminal suspect / defendant, which means no “enhanced interrogations”, no transfer to Gitmo, no military tribunal, etc?

        For what it’s worth, I agree that Shazzam should have been read his Miranda rights.  I agree that the law should be followed.  I agree that neither Yosemite nor anybody else should be able to change the law at will.  I think that Yosemite’s statement was driven at least in part by politics: he’s having a tough primary challenge from the right and needs to burnish his national security creds (I wonder what he’d say now about waterboarding and toture?).

        So, what SHALL we do with Shazzam?

        • I see your point (reference my all after “On the other hand…”), but we’ve also been ’round and ’round about Mirandizing terrorists, giving them access to lawyers, etc., etc.

          What ever happened to legal presumption of innocence until proven guilty? That’s kind of a cornerstone of our judicial system, isn’t it? Has that gone the way of the dodo as well in this hyper-security regime which seems more than willing to punt civil liberties in the name of convenience?

          • McQ What ever happened to legal presumption of innocence until proven guilty? That’s kind of a cornerstone of our judicial system, isn’t it?

            I agree.  We ought to hold some sort of trial; I do not propose that we summarily execute terrorist suspects.  The problem is that a terrorist, especially a foreign terrorist, may be considered an unlawful combatant and his action(s) an act of war that are not covered under the criminal code.  What about Shazzam?  What, legally, IS he?  Is he an American who tried and failed to commit murder, and therefore should be tried in a civilian court for that and related offenses, or is is an unlawful enemy combatant who can and should be interrogated, tried by military tribunal, and (if found guilty) be shot or hanged?

            If the former, then Yosemite was dead wrong to complain about his rights being read.  If the latter, then Yosemite has a point.  Imagine for a moment that it’s 1942 and the G-men just caught Fritz von Schickelgruber as he attempted to escape the country after an unsuccessful effort to explode a bomb somewhere in NYC.  Assuming that Miranda had existed then, should our fictional nazi bomber have had his rights read when arrested?  Why or why not?

            Again, I agree that Shazzam ought to have had his rights read, if for no other reason than to eliminate the possibility that a judge would (rightfully if regrettably) let him go because his civil rights were violated.

  • More important to me than the Miranda debate is how did the guy get into the airport, buy a ticket, and board a plane when he was allegedly flagged and under surveilance? 

    Look, the Miranda thing if we’re lucky we have a bit time to debate and settle.  This negligence and incompetance of allowing these terrorists to get on plane with underwear explosives or to flee the country has to be fixed NOW.

    • I wonder if they let him get on the plane to see if he’d associate with anyone or call anyone thinking he was safe?

      • It sounds good but I can’t credit them with that level of smarts. As someone else pointed out, once you let him on that plane, he’s there in an enclosed space with civilians- what if he decides he doesn’t want to be captured without a fight? Now those people on the plane are at potential risk.

        No, it looks like someone effed up badly – again.

        • If this was Bush, “how’d he get on the airplane” would be the headline for the next 48-72 hours.

  • No, if this man is detained as an illegal enemy combatant he does not get a Miranda reading.

    Since the latest is that he was trained in a terror camp in Pakistan, he is clearly an enemy combatant, but that need not be perfectly determined in order to detain someone who has just tried to kill hundreds of people in Times Square. It was known before he was apprehended that he had left the country for an extended period of time and re-entered. That’s sufficient to detain him, by order of the CINC through the chain of command, as a military prisoner, an illegal combatant, until otherwise determined and turned over to civil authorities.

    We absolutely have to be able to make these distinctions.

  • Now WaPo is reporting that he was detained without a Miranda reading on national security grounds and later read Miranda. The CINC punted, as one would expect. This case doesn’t belong in a civilian court. If the bomb had gone off would they be treating it this way? Probably not, because the politics would be pushing the other way.

    • Martin McPhillipsIf the bomb had gone off would they be treating it this way? Probably not, because the politics would be pushing the other way.

      Exactly right, and that highlights a danger of our laws about terrorism, or, more exactly, LACK of laws.  I suggest that people on both sides of the aisle lament at least some features of the Patriot Act, which was passed in haste and in anger after 9/11: politicians saw the need to appear to be “doing something”.

      Had the bomb gone off, my guess is that Imeme, the rest of DC and a good bit of the country would be howling for Shazzam’s blood, and to hell with Miranda, civil rights, and all the rest of it.  I shudder to think what sort of damage Imeme and the democrat trash could do to the Constitution in the aftermath of a terrorist attack: that would be a crisis that they most assuredly would not let go to waste.

      • It’s not a lack of laws. It’s a confusion, mostly on the part of this CINC and the people around him, about the situations in which those laws are applied. There’s also no realistic approach to national security with these people, and that would be the gentle way of putting it. They are warming us up for the big one.

        • It’s not confusion at all Martin – the law says federal law enforcement officers will Mirandize a suspect. They’re apparently not confused in the least. The suspect is an American citizen. Maybe some think he shouldn’t be, but the fact is he is. Consequently, until the law is changed, that’s what is required, unless, of course, you want to see the court let him walk.

          • Bruce, yes, he’s an American citizen. But for those in your comments who seem to think that Team Obama is “soft” on terror, Obama is not just Bush Lite, he’s worse than Bush vis-a-vis national security and civil liberties. He’s recently decreed that he has the authority to assassinate American citizens and devised policy accordingly. No trial, much less concern with Miranda rights. If Obama (and his successors) label a citizen a security threat, s/he is subject to summary execution.

          • Understand Mona – and we covered that when it was revealed.

            However, speaking of commenters here, I’ll just remind you that Obama was your candidate of choice, not that of the commenters. However, given McCain’s remarks today (and no I didn’t vote for him) it doesn’t appear it would have mattered much.

          • However, speaking of commenters here, I’ll just remind you that Obama was your candidate of choice

            Bruce, as you are likely aware, I was never gung-ho for The One. It was very much a LOTE vote.  And now I’m ridiculing and lambasting Obamabots over their grotesque behavior in defending anything Obama does, just because he is Obama. They could be Bushies when 43 was still in power — same syndrome.

          • This guy can be and was detained, initially, (this is the latest reporting in WaPo) on a national security exception that doesn’t require Mirandizing. The CINC has Constitutional prerogatives with regard to combatants, legal or illegal. This guy fits the bill. He left the country, apparently trained with the enemy, and then returned with the intent to commit an act of terrorism. Only his stupidity and our luck kept that from happening. It did not need to be designated a civilian matter, but it appears that Obama punted, which we’ll find out in fairly short order will be credited to the idiot Holder. But the prerogative is CINC’s.

          • I agree that there IS confusion, perhaps not at the point of arrest, but certainly afterward as we try to decide whether to try suspects in civilian court, hold them at Gitmo, waterboard, etc., etc.
            Does anybody know whether or not FBI agents read Miranda rights to suspected Soviet agents during the later years of the Cold War?

          • If the agent was a US citizen, I’d like to know how they avoided it.

          • I should have been explicit: did the FBI ever arrest a Russian national (say, a KGB or GRU officer) and, if so, did they read him his Miranda rights?

            However, your comment raises an interesting question: why should the citizenship of a suspect matter?  We may assume that the Soviet Union posed as much of a threat (greater, actually) to us than does AQ or other terrorist organizations, but I’m not aware that there was any particular move to try Soviet agents (either Soviet citizens, other foreigners, or American turncoats) in special courts, subject them to enhanced interrogation, etc.  Other than the “unlawful combatant” issue, why should we treat terrorists any differently than we did Soviet spies and agents during the Cold War?

          • Espionage is treated differently than acts of terror, depending on whether a spy is caught in a war zone or not, meaning a zone in which the military is effectively the controlling authority.

            A spy is not the same thing as a combatant, but the traditional punishment for a spy caught by the other side in a war zone was execution. I’m not sure what the current conventions dictate.

          • Well here’s another point to ponder – supposedly we were chasing a “40 year old balding white man” in the beginning. What if the guy had been a 40 year old balding white man? Do we assume he’s a US citizen or an international terrorist? Had he been a domestic terrorist, do we determine that before we Mirandize him or do we let the court sort that out? Would he have been an enemy combatant or a criminal?

            The point of course is the “international connection” with this guy wasn’t determined until after the fact. But they knew he was a US citizen before they picked him up. And I can assure you had he been a 40 year old balding white guy and Tea Partier, no one would be talking about classifying him as an enemy combatant before he was picked up.

          • No one had confirmation a probable international link.  Moving your family abroad before the attack and planning to escape abroad, to me says he had foreign refuge arranged and qualifies this as a foreign attack.

          • And comments are still broken.   The above reply was meant for this comment:

          • Yeah, like half the Mafiosi who routinely left the country to avoid prosecution and to let things “cool down” for a while. Foreign attack? Or bank heist?

          • No, once they knew his identity, his passport would show he visited Pakistan for 5 months. At that point, you could reasonably assume he was not a purely domestic terrorist. Now, since he is still a citizen, I guess you still have to Mirandize him, but if you just ask questions first and don’t arrest? So you miss his confession being allowed in court, but you find out 3 more accomplices from his training class? IANAL though.

          • But they Mirandized him and found out about that anyway.

          • This guy was detained, at first, without a Miranda reading, under what is called the “public safety exception.” As to the what ifs, before getting to that, he is who he is and has engaged in the pattern he has engaged in. He is an unlawful combatant (the preferred term, I was using illegal combatant earlier) and the CINC can apply that designation at his prerogative in his capacity as CINC.

            So, the what if. What if he was an American without any connection to international terrorism. I imagine that there are all sorts of conditions. For instance, acting alone because he doesn’t like NYC: He’s a criminal. That is, he’s not acting on behalf of a state or a non-state actor who is effectively at war with the U.S.

            Then there could be, theoretically, as there was actually during the Civil War, a state of general insurrection. For that sort of thing I think you go back to the USSC decisions of that era and you’ll find situations where military law applies in a zone where the military is engaged in warfare, but not in areas where there is no immediate military exigency. I don’t know how it all applies, but that’s the extreme case of citizens, their punishment and detention, during a full-blown civil insurrection. I don’t think that there was a lot of civil due process in the prison camps on either side. War is hell, but much of that could have been avoided or remedied, though it’s easy to say so in hindsight.

            But a small-scale wholly domestic “insurrectionist” outfit, terrorists from that sort of situation are going into the criminal justice system to be prosecuted under the usual civil criminal proceedings.

            But there are possible gray areas where citizens are associated, directly or indirectly with foreign enemies, and commit violence on their behalf or at their behest, and those would need to be looked at for national security implications and by the CINC.

            This present case should have seen the CINC designate this guy as an unlawful combatant to be held, interrogated, and perhaps tried by the military. He would be entitled to a habeus review regarding his designation. I don’t think that there’s any question, so far, that this guy should not be in the civilian courts. Not that that cannot work out in the short run. He might very well be talking. But when you have someone like this, he should go over to the military and let them go through the spectrum of non-lawyered, non-civil rights approaches to his information.

            If Booosh had not followed these more or less traditional pathways, then the current administration, which came to power on the demonization of Booosh, might very well have no problem with these approaches. But who knows. They’re an odd outfit with very little interest in counterterrorism, as former DCI Hayden et al. pointed out in preceding months.

            These people will get a lot of Americans killed. And I don’t think they care.

          • Exactly.
            As an American citizen, his motive to committing the crime should be irrelevant to his right to due process.

          • Well, it was virtually a joke during the Cold War that Soviet diplomats were KGB. That is why and how we learned about a very active nest of domestic spy cells, i.e., diplomatic cables. But to answer your question, I do not know whether a foreign national was ever arrested as a Soviet spy in the absence of Miranda rights, once that decision came down. But that Pollard guy who spied for Israel was tried in regular courts and sentenced from them.
            The problem with all these “wars” — on poverty, drugs, and now terror, is that they are not wars in any conventional sense, and nor should they be. War is a very grave matter, and ought not be invoked absent a formal declaration of war from Congress for hostilities between or among nation-states. And, in fact, the AUMF is not a declaration of war; Alberto Gonzales made that point more than once, noting that declarations of war have legal consequences. And indeed they do.

          • Does anybody know whether or not FBI agents read Miranda rights to suspected Soviet agents during the later years of the Cold War?

            No, the Miranda decision had not yet come down. For that reason, Stalinist spies and traitors such as physics prodigy Ted Hall, who worked on The Manhattan project, never paid a price for handing the secrets of the A-bomb to the USSR. The FBI knew Hall was guilty, but the evidence for it was likely inadmissible in court, as well as largely a by-product of intercepted WWII-era Soviet diplomatic cables that the U.S. did not want the Soviets to knew we had partially decrypted. (The Soviets knew that anyway, as it turned out, because their British spies had told them.)
            Hall was interrogated, but the FBI could not extract a confession from him. So he left for the UK and lived to a ripe old age , utterly unrepentant. As far as I am concerned, that is appalling, but proper; America did not detain Hall and throw him in a prison for the duration of the Long Cold War. We are America; Hall would have been tortured and shot in the USSR had he spied against it. America is not supposed to operate that way. But 9/11 did change a lot of things, even if not everything.

          • Again, someone involved in espionage is treated differently than someone engaged in actual warfare as a combatant. A spy caught in a war zone under the jurisdiction of the military, however, was traditionally treated very harshly. And American who spied for the Soviets while under civil law were executed and imprisoned; some are in prison right now, in fact (Ames and Hansen, I believe, and a few others).

            America is indeed a due process society, but that has to do with criminal justice. Engaging in warfare against American society can be a matter for military justice, and sometimes needs to be a matter of military justice. One of the elements of asymmetrical warfare is that the enemy will use the values and standards of a society against it. Criminals do that too, of course. But warfare presents another level of threat entirely.

            And yes, with as many idiots as we now have in power, these sorts of powers are worrisome. But such approaches exist for good purposes. They can be abused like a lot of other powers.

  • Strange comments at a libertarian blog when it comes to civil libertarianism.

    “Second, on Fox News this morning, both Glenn Beck and Andrew Napolitano supported following the law and Mirandizing Shahzad. Congratulations, John McCain and [Rep. R-NY] Pete King, you’re now slightly less reasonable than Fox News personalities.”

    Jon Henke’s retweet: @Chris_Moody “But still”? Rep. Steve King (R-NY): “Did they Mirandize him? I know he’s an American citizen but still.”


    • It has nothing to do with “civil liberties” if it’s not a civil matter, and this clearly is and should be treated as a national security AND a military matter, and CINC has that prerogative. There is nothing new or anti-libertarian about it.

    • I see. The Long War means United States citizens have no civil liberties if the state alleges they are terrorists. Arrest them, throw them in a cage until there is no terrorism any more — effectively for their lifetime — and even assassinate them. They relinquish the Bill of Rights when the Executive branch says so.
      Yes, that’s my idea of a libertarian position. [eyes rolling]

      • If you make a move toward blowing up Times Square, you very well could be detained for the rest of your life. But the way it’s set up now you are still entitled to a habeus review of your designation as an unlawful combatant.

        As far as assassinations go. If you’re actively engaged in attacks on the United States and are adhering with its enemies overseas and there’s no other way to get at you, damn straight somebody is gonna take a shot at you. If you want your rights as a citizen, then surrender yourself at the nearest American embassy and tell them you want to clear your name or confess. There are going to be consequences when you are connected to a domestic terrorist like Major Hasan and the Christmas underpants guy. That’s warfare, and you’re going to get warfare back at ya.

        • Great – what’s his Miranda status while awaiting a habeus review? If unMirandized and the review refuses to designate him an “unlawful combatant” you may as well open the cell door and wish him a good night.

          • If he’s detained as an unlawful combatant, he has no right to counsel and no right to remain silent.

            If his status is rejected by a court (and I think the final court in that process, short of the USSC, is the D.C. District Appeals), then there are ways to make a criminal case without the evidence you obtain without counsel and right to silence.

            Remember that one of your primary purposes in taking him out of the civilian process is to get his information for national security purposes, not for a criminal prosecution.

            For instance, as leads are uncovered in this investigation, you want this guy to give you all sorts of incidentals that can confirm his activities in the U.S. and Pakistan. In the criminal setting, all he has to do is refuse to answer. He might have an aggressive lawyer who won’t let him say a word. That’s the lawyer’s job. In the unlawful combatant setting he doesn’t have that, and so that’s the way you might learn that next week there’s twenty-five pounds of semtex on its way to Times Square.

  • McCain, continually finding ways to try and make Obama look like the right choice.

    • Think of it this way.  Look at the damage Bush did to Republicans and Conservatism (despite not being much of the latter).  Imagine the damage that fool would have done.  When McCain was lifted to the front, it became win-win for the Democrats.

  • “I’m sure there’s a significant number to warrant the death penalty.”

    Does McCain think that the number of charges determines the sentence? If this and the other quotes in the article are accurate, McCain is rapidly becoming totally incoherent.
    Definitely time for him to go.

  • That being said, to a certain degree the milk was spilled when he was made a US citizen and personally believe US citizens and green card carriers should have additional rights that survive the accusation of a connection to international terrorism.
    The important question is how did this POS get citizenship in the first place.  That’s where the system is broken.
    The idea that we give it away for just showing up became absurd after 9/11 (actually after the WTC first attempt).  You can’t have your cake and eat it too.  You can’t allow it to be easy for someone who hates you enough to kill you to become a protected citizen.  Or obtain a green card.  That’s just insane.
    If you’re going to grant Miranda rights to anyone, you can’t have illegal immigration either.  Its prevention has to be enforced.
    You definitely can’t have a guest worker program.  We can’t apparently screen people who become citizens, is the bar going to be higher for a guest worker?  A guest worker’s movements would usually be more erratic than a new citizen’s movements and they will likely travel in and out of the country much more as well.  So how do you track them?
    When there are people who want to kill that will become your fellow citizen and are potentially sponsored by foreign entities, you have to choose whether you’ll have porous borders or preserve individual rights.  We know which one George Bush chose.  You can’t choose both.