Perhaps intelligence committee is a misnomer

The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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CT Supreme Court: To be a law firm you’d have to be a real lawyer

u-think-we-share-2-much-nah.jpg

If you’ve ever had to respond to an opposing party’s filing in Court, you know that some are very good and make your job challenging. And you know that some are so bad that you don’t know where to start. You sit and stare at the pleading or brief or whatever it may be and you stare at a blank computer screen because the depths and lengths of the sheer absurdity of the filing that you are tasked with criticizing and rebutting is unimaginable and it is swallowing your brain whole because there is no possible way any human being can even begin to deconstruct the stupendously mindboggling arguments that have been made. And you stare and stare in the hopes that someone will rescue you by showing up in your office and saying “April Fool’s! That’s not the real thing” or “hey, never mind about that reply because they withdrew their filing out of sheer embarrassment when they realized how it’s not even wrong” and then you resign yourself to the fact that you can’t actually submit a response that consists entirely of the Picard facepalm, because, while funny, it’s not very professional and so you write several different opening sentences only to delete them all and try again while swimming in the despair and futility of it all.

This is how I feel right now – and have felt since 11:30am yesterday morning, when the Connecticut Supreme Court issued its opinion in Anderson v. Commissioner [PDF].

Anderson is an appeal of an Appellate Court decision that I wrote about in October 2011. It was a post-conviction appeal in which Mr. Anderson argued that his conviction was illegal because his lawyer represented him in a way that violated the Sixth Amendment because the lawyer was operating under a conflict of interest.

This is a big deal, because everyone has the Constitutional right to have a lawyer whose only interest is the interest of that client and no one else. See Cuyler v. Sullivan. You can easily imagine why this is paramount. The client hires the attorney with the intention that the attorney will represent the client and only the client in his case and that the attorney is working for the client and what the client wants and thus the attorney’s loyalties cannot be divided.

There are very strict Rules of Professional Conduct that govern this matter and whether lawyers in the same law firm can represent two parties whose interests are at odds with one another. The rules are pretty clear, stating that you cannot do that, unless you get waivers from both clients. Unless, of course, you’re not a “real lawyer”. By which I mean you’re a public defender.

A shortcut through your rights

The Hartford Courant has a whiny editorial complaining that the State’s prosecutors have no investigative subpoena power, which, as I’ve written so many times now, is not even a euphemism for forced interrogations and also a violation of the Fourth Amendment.

It argues that state prosecutors are “relatively toothless”. I suppose relatively is a relative term, but the Editorial makes no effort to tell us what it is relative to. I suppose it is relative to a world in which every citizen is obligated to answer any and all law enforcement questions and turn themselves in for committing crimes lest they be charged with another crime for failing to do that.

But that’s not the world we live in. Prosecutors are handling themselves just fine, thank you, judging by the crushing caseloads of the criminal courts in Connecticut.

All of that, however, I would forgive, if the Editorial did so much as to attempt to explain the standard for conducting these secretive investigations the State wanted: in the interests of justice.

A standard that is more vague and unexplained has not been written. The interests of justice is a moving target, a “we’ll tell you what it means when we decide what it means” standard that changes depending on the case and the subject subject to it.

The prosecutors were testifying in favor of a bill that would open some shortcuts for them in seeking a grand jury capable of issuing subpoenas. That would be progress.

I don’t want the State taking any “shortcuts” through the Constitution. When the State takes “shortcuts”, innocent people end up in jail. But the Editorial Board doesn’t seem too worried. Maybe we can have them be the guinea pigs for this shortcut. In the interests of justice.

[For my previous complaints with the rather naive and uninformed views of the Hartford Courant when it comes to criminal justice matters, see here and here.]

Give an inch and now they’re suggesting forced interrogations

herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

Panel Discussion on the Right to Record Police

The Connecticut Foundation for Open Government and the Connecticut Society of Professional Journalists are holding a panel discussion tomorrow evening (Tuesday, April 23rd) at Quinnipiac University School of Law on the right to record police interactions in CT. It starts at 6:30 and ends at 9:00pm and is free to the public. If you can’t make it, it will be broadcast (live?) on CT-N.

The panelists are Kevin Kane (Chief State’s Attorney), Sandy Staub (Legal Director ACLU-CT), Mickey Osterreicher (General Counsel National Press Photographer’s Association), Chief Matt Reed, Windsor chief of Police, VP of Connecticut Police Chiefs Association (also a graduate of WNEC), Mario Cerame (author of The Right to Record Police in Connecticut, who also has a law review article on the subject) and is moderated by Attorney Dan Klau, who, among other things, authors a blawg.

This is particularly timely in light of the fact that the Judiciary Committee just approved a bill that would legalize the videotaping of police interactions.

The cost of Quarles: from Tsarnaev to you

It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

Compare and contrast

Compare Senator Lindsey Graham, R-SC, writing about the Boston Marathon bombing suspect, who despite everything else, is an American citizen:

Lindsey-Graham-tweet-2

 

with:

The term “person,” used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. This has been decided so often that the point does not require argument. Yick Wo v. Hopkins, 118 U.S. 356, 369; Ho Ah Kow v. Nunan, 5 Sawyer, 552; Carlisle v. United States, 16 Wall. 147; In re Lee Tong, 18 Fed. Rep. 253; In re Wong Yung Quy, 6 Sawyer, 237; In re Chow Goo Pooi, 25 Fed. Rep. 77.

Wong Wing v. United States. And:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Mr. Justice Frankfurter in Irwin v. Dowd, And finally:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

Mr. Justice David Davis, in Ex Parte Milligan, 4 Wall 2 (1866).