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The Rights of Dzhokhar Tsarnaev

dzhokhar_boat_infraredJust before Dzhokhar Tsarnaev’s capture on Friday night, South Carolina Senator Lindsey Graham suggested that Tsarnaev should be treated as an enemy combatant of the United States, allowing investigators to interrogate him without first Mirandizing him.

Following his apprehension, it was made clear that the FBI intended to do just that, by invoking a little known “public safety” exception clearing them of the legal obligation to read Dzhokhar his rights.

On Saturday, the Guardian’s Glenn Greenwald tackled this story, asking what rights Tsarnaev has as a suspect in a potential terrorist bombing.

He charts the history of the Miranda public safety exception from a 1984 Supreme Court trial through to the Department of Justice’s 2011 expansion of that rule, concluding with an analysis of what it means for ordinary US citizens. In the process, he catches President Obama and other liberal politicians in an embarrassing and troubling allegiance with Senator Graham and even former President George W. Bush:

It is bizarre indeed to watch Democrats act as though Graham’s theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this “entire-globe-is-a-battlefield” war paradigm – as supporters of Obama’s assassination powers must do and have explicitly done – then it’s impossible to scorn Graham’s views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham’s beliefs are grounded.

Dzhokhar became a naturalized citizen in 2011, but because he is suspected of participating in a terrorist act—something that is by no means proven nor clear—and is thereby considered an enemy combatant, his constitutionally guaranteed right to a fair trial is being denied. As should be plain, and as Greenwald makes very clear, this establishes a precedent for the government to deny those same rights wherever it fears a terrorist threat is present, even if it involves citizens born in this country:

Needless to say, Tsarnaev is probably the single most hated figure in America now. As a result, as Bazelon noted, not many people will care what is done to him, just like few people care what happens to the accused terrorists at Guantanamo, or Bagram, or in Yemen and Pakistan. But that’s always how rights are abridged: by targeting the most marginalized group or most hated individual in the first instance, based on the expectation that nobody will object because of how marginalized or hated they are. Once those rights violations are acquiesced to in the first instance, then they become institutionalized forever, and there is no basis for objecting once they are applied to others, as they inevitably will be…

Figuring out what constitutes terrorism is tricky. It’s therefore equally tricky labeling and distinguishing terrorists from criminals. But since Dzhokhar’s alleged involvement in the Marathon Bombing looks like terrorism, it might as well be. Nevermind that there’s little evidence to distinguish what he allegedly did from what other violent criminals have done, as in Aurora, CO, Sandy Hook, or Columbine.

Some would even like to label Army Pfc. Bradley Manning and Wikileaks as terrorists, and it’s a short jump from there to equating political dissenters with enemy combatants. Go far enough down that road and the denial of Miranda rights begins to look positively Orwellian—just so long as you might be a terrorist, your rights are fragile and can be broken. It’s easy to see how collapsing distinctions between criminals and terrorists could quickly create legal problems for everyone.

With such broad interpretive powers in the DOJ’s hands, it’s hard not to feel a little frightened by the treatment of Dzhokhar Tsarnaev, who is supposed to be innocent until proven guilty. Assuming that he is a terrorist effectively gives our government the right to disregard what he earned when he became a United States citizen. And if his rights go, then so do mine.

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A Sobering Reminder

I can’t pretend I’m unhappy with the results from this year’s presidential election. Of the two candidates who were mostly likely to win, Barack Obama was the one I most wanted in the White House. His opinion on gay marriage alone, as late changing as it was, was nearly enough to sway me to his side. Obamacare, the auto industry bailout, and his tax proposals also won my sympathies.

But there’s plenty about his first four years I’m unhappy with, and William Saletan at Slate has written an excellent article explaining why. In his address to republicans bemoaning the election results, Saletan offers this consolation: “Dear Republicans… Cheer up. The guy we just re-elected is a moderate Republican.”

Find that hard to believe? Keep reading:

Yes, Obama began his presidency with bailouts, stimulus, and borrowing. You know who started the bailouts? George W. Bush. Bush knew that under these exceptionally dire circumstances, bailouts had to be done. Stimulus had to be done, too, since the economy had frozen up. A third of the stimulus was tax cuts. Once the economy began to revive, Obama offered a $4-trillion debt reduction framework that would have cut $3 to $6 of spending for every $1 in tax hikes. That’s a higher ratio of cuts to hikes than Republican voters, in a Gallup poll, said they preferred. It’s way more conservative than the ratio George H. W. Bush accepted in 1990. In last year’s debt-ceiling talks, Obama offered cuts to Social Security, Medicare, and Medicaid in exchange for revenue that didn’t even come from higher tax rates. Now he’s proposing to lower corporate tax rates, and Republicans are whining that he hacked $716 billion out of Medicare. Some socialist.

There’s much more to Obama’s republican streak than that. Saletan mentions a few, but what he doesn’t mention counts equally as much to this voter: his policies on whistleblowing.

This is a time to celebrate. But we re-elected the president because he represents an alternative to the republican path. We should expect him to fulfill the promise of that image. I’m excited for the next four years, but I will be watching them with a critical (and fair) eye.

photo outside American embassy in Libya

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“It’s not Iraq, but it’s not good, either.”

Glenn Greenwald commenting on the discovery of Chris Steven’s journal by CNN:

What is actually “disgusting” here is that the State Department is exploiting the grief of Chris Stevens’ family in an attempt to suppress and delegitimize reporting that reflects quite poorly on them. As Michael Hastings documented yesterday, the State Department views the revelations from Stevens’ journal as threatening to Hillary Clinton’s reputation, the legacy of the war in Libya, and possibly Obama’s political prospects in an election year.

But the more relevant impact is how this reflects on the war in Libya, flamboyantly celebrated as a grand success by Washington consensus and then all but forgotten. Stevens’ journal is but the latest in a long line of evidence demonstrating how much extreme instability, lawlessness and violence is plaguing that country in the aftermath of the intervention. Wrote Hastings: “As one senior U.S. government official who’d visited Libya told me earlier this summer: ‘It’s not Iraq, but it’s not good, either.'”

With so much media focused on Mitt Romney’s incompetence, stories like this get overlooked. It’s hard to feel enthusiastic about voting for Obama when stories like this one pop up, and it’s not even the scariest one. Most people probably won’t care about how bin Laden was killed, but the Obama administration lied about that to keep up appearances, and his “drone campaign” is much bloodier and  less precise than he wants anyone to believe. Innocent people are dying as a result. But, that’s not a narrative we frequently hear. Greenwald fills in some of the blanks:

…the people in the areas targeted by Obama’s drone campaign are being systematically terrorized. There’s just no other word for it. It is a campaign of terror – highly effective terror – regardless of what noble progressive sentiments one wishes to believe reside in the heart of the leader ordering it. And that’s precisely why the report, to its great credit, uses that term to describe the Obama policy: the drone campaign “terrorizes men, women, and children”.

Along the same lines, note that the report confirms what had already been previously documented: the Obama campaign’s despicable (and likely criminal) targeting of rescuers who arrive to provide aid to the victims of the original strike. Noting that even funerals of drone victims have been targeted under Obama, the report documents that the US has “made family members afraid to attend funerals”

On the home front, Obama’s position on whistle blowers, Wikileaks, and Bradley Manning exemplifies his policy of secrecy abroad, but with the added menace of being closer to home. Greenwald again:

More remarkable is that a Democratic presidential candidate is sticking his chest out and proudly touting that he has tried to imprison more whistleblowers on espionage charges than all previous presidents in history combined: more than the secrecy-loving Bush/Cheney White House, more than the paranoid, leak-hating Nixon administration, more than anyone in American history.

Persecuting and abusing whistleblowers. Indefinitely imprisoning peoplewith no charges. Due process-free assassinations of citizens, even teenagers. Continuous killings of innocent people in multiple Muslim countries.

This isn’t just what Democrats do. It’s what they now boast about, what they campaign on, what they celebrate. That, as much as anything, is the Obama legacy.

That last bit bites the hardest. I remember sitting on my couch and watching Obama win the 2008 elections, and I remember having some naive sense of hope; hope about intelligent foreign policy and transparency in the White House after eight years of dealing with George Bush and company. Now, I’m left wondering who to vote for, because Romney is an even worse choice. The quote I used in the header for this article is in reference to Libya, but it could as easily be about America.