Conjuring the Fifth

Most people consider me a social liberal. (“You’re saying that just to piss me off. No one’s really as liberal as you pretend to me,” can safely be described as coming down on that side.) I don’t believe in torture, and I think our Constitutional protections, and this country’s willingness to get out in front of the rest of the world in this regard, is a form of “American exceptionalism” we can be proud of. Still, common sense is in order, and the Supreme Court got one right today when it ruled, in a 5-4 decision, that a suspect must actually invoke his Fifth Amendment protection against self-incrimination if he wishes to take advantage of it.

Here’s the gist of it: Van Chester Thompson was arrested for murder in 2001. Advised of his rights, he said he understood them. He then sat through about three hours of interrogation, occasionally answering “yes,” “no,” or “I don’t know.” When a cop asked if Thompson prayed for forgiveness for “shooting that boy down,” Thompson said, “yes.”

Oops.

That got him convicted, and I can see why. Thompson appealed, arguing the statement should be thrown out because he tacitly invoked Miranda by being uncommunicative. Please. All he had to do was to say, “I want a lawyer,” “I don’t want to answer any questions,” or “I’m taking the Fifth.” Anything along those lines would have compelled the cops to stop the interrogation, or this would be an entirely different case.

Invoking the Fifth Amendment is not a clever tool for cherry-picking answers. Grand jury witnesses who appear under grants of immunity must invoke their protection against self-incrimination with the first question. You’re not allowed to answer the questions you like, then dodge the ones that could get you into trouble. We can argue about whether that’s fair—I have my doubts—but it’s been established law for years.

As Chris Rock says in his priceless video essay, “How Not to Get Your Ass Kicked by the Police,” the best thing for someone in Thompson’s situation to do is to “Shut the fuck up.” But not till after you ask for a lawyer. It’s your right, you know.

Convenient Justice is Not Justice

An open and impartial judicial system is a cornerstone of any democracy. No one is guaranteed a perfect trial, but as much transparency as possible in the courtroom is necessary for building trust in the system, especially for a nation that likes to hold itself up as an example to the world as often as does the United States.

That’s why it is confusing and confounding to see any disagreement about whether Umar Farouk Abdulmutallab should be tried in federal court, or by special tribunal. Abdulmutallab, who tried to blow up an Amsterdam-to-Detroit plane on Christmas Day, is a criminal. He was caught in the act with multiple witnesses. Super-secret intelligence gathering techniques will not be exposed by his public trial. (Why we’d be worried about exposing these super-secret intelligence gathering techniques in this case is questionable, since they had nothing to do with stopping him.) Try him in open court. A conviction is likely; I doubt a jury made up of the twelve primary contributors to DailyKos would exonerate this guy. This is how to show the rest of the world our open system not only functions as well or better than anything they could come up with, and we are not afraid to trust it.

Dick Cheney et al want Abdulmutallab tried by tribunal and, presumably, tortured to get whatever information he has, even though he is said to be cooperating fully. Is Cheney afraid? Need we even ask that question, as familiar as we all are with the former Secretary of Defense’s Vietnam-era military record?

A free society is not without risk. The framers of the Constitution were well aware of that, yet they still insisted on the Bill of Rights. The Fourth, Fifth, Sixth, and Eighth Amendments are clear: everyone is entitled to protection from unreasonable search and seizure, the right not to give self-incriminating testimony, a speedy and public trial, and cannot be subjected to excessive bail or cruel and unusual punishment. Hair-splitting about whether someone should get a public trial is anti-Constitutional on its face.

A quote I’ve borrowed for my e-mail signature reads, “I prefer a man who will burn the flag and then wrap himself in the Constitution to a man who will burn the Constitution and then wrap himself in the flag.” The second man is a hypocrite and a coward. If anyone is not worthy of Constitutional protection, it is he.

Constitutional Scholarship

South Park occasionally scorches a religion or point of view by presenting an animated version of their beliefs and running under it a scroll that read: THIS IS WHAT MORMONS/SCIENTOLOGISTS [whoever] REALLY BELIEVE.

It's just as funny when The Onion gets into the act.

The Fourth of July

Happy Independence Day to all those in the United States and elsewhere who celebrate it.

Let's all remember, this is a nation of immigrants, formed through dissent, under the premise that everyone has a right to speak their mind, worship (or not) at their discretion, and associate with wheomever they choose. The flag has no meaning as a symbol unless its desecration as a form of protest is permitted, and permitting that desecration is not the same as approving of it. Those who would deny that right, and fly flags as big as football fields in all weather, night or day, might take a minute to read up the proper treatment of the flag. There's more to desecration than burning.

As it says above, dissent is not disloyalty, and I will always prefer a man who burn the flag and wraps himself in the Constitution to one who burns the Constitution and wraps himself in the flag.

May God bless America, but, more important, may we deserve that blessing.

Catch 23

Read Jonathan Turley's column in today's Los Angeles Times.

A Huckabee By Any Other Name

Looks like Mitt Romney’s not as open-minded about religious choice he’d like you to think. "Freedom requires religion, just as religion requires freedom," to use a direct quote, is not the blanket call for tolerance the Mittster would like to claim it is. Recent polls show 18% of Americans define themselves as either agnostic or atheist. The number is probably higher if you include those who may believe in some greater power, but not in what passes for organized religion. Deists, for example. (For those might say Deists don’t qualify, let me cite one who is clearly germane to the discussion of religion versus politics in America: Thomas Jefferson.)

Freedom is supposed to be for everyone, regardless or what they believe. Or don’t. There’s no litmus test for it. It’s supposed to be an inalienable right, whether you believe in God, don’t believe in God, believe God “set the clock and got out of the way” (to quote Chris Matthews), believe in reincarnation, or pagan rituals.

Freedom in the United States is not handed down from God; it’s guaranteed in the increasingly fragile parchment of the Constitution. The framers may have thought they were divinely inspired – and they may well have been – but God does not actively dedicate Himself to the rights and liberty of every American. Want proof? The greatest assault on our allegedly guaranteed liberties in the 220 years since they were handed down from Philadelphia has taken place under the watch of, and with the encouragement of, the only President in history who considers himself to be God’s messenger on earth.

You can think your liberty comes from God, but you’d better be prepared to defend it yourself. Mitt Romney isn’t going to.

Protecting America

There are two major political parties in the United States: Thugs and Cowards. They masquerade as Republicans and Democrats, but today’s incarnations bear as little resemblance to the parties of Lincoln and Roosevelt (even Eisenhower and Johnson) as a giraffe does to a manatee.

Thugs will stoop to any depth to scare, browbeat, intimidate, vilify, or disparage anyone who disagrees with them. Think the war in Iraq was a bad idea? You’re a terrorist sympathizer who wants our brave troops not only to die, but to suffer first. Think we might want to consider raising enough money to pay for the myriad of pork projects written into law in the dark of night without any recorded votes? You’re an advocate of sending the working man to the poor house. Best plan for health care? Give all your money to private insurers and let them decide whether to provide care, or not.

Sounds pretty oppressive, doesn’t it? The Cowards are worse. A Coward never met a challenge he couldn’t back away from. This makes Cowards natural fodder for Thugs, since a Coward is an invertebrate that couldn’t stand up for what is right if he recognized it, which he’s afraid to do, because all viewpoints have value and merit in the eyes of a Coward. Wouldn’t want to invalidate someone’s true feelings. Sure, we believe in the Constitution, but the perspective of our Thug brethren has just as much validity, even though where the Bill of Rights says “yes” the Thugs say “no” and where the Bill of Rights says “no” the Thugs say “yes.” We may disagree in our hearts, but when it comes time to put our vote where our oath is, the word “threat” trumps “freedom” every time.

The Fourth Amendment to the Constitution is straightforward: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It’s that ”no Warrants shall issue” part that hangs everyone up. Warrants require probable cause, and Thugs don’t want to fool around with that. They’ll decide who to search and seize, no impartiality required. How to get around that tricky language? Do away with warrants altogether.

Never mind that warrants have had a place in jurisprudence since the Magna Carta. Forget that we won two World Wars and the Cold War without disposing of them. This is different. A few thousand people died on one day six years ago; the values that made this country great must be put on hold so no more will join them. What about the hundreds of thousands who have died over the past two hundred-plus years to preserve that freedom? Brave men and women die in Iraq and Afghanistan every day, allegedly so we won’t have to fight here. Yet we freely sacrifice the liberties that make this country worth fighting for.

At the top of this page is a quote from a man who was largely responsible for the type of nation we once aspired to be. His words were never truer than they are now: Those who would sacrifice liberty for security deserve neither liberty nor security. All members of Congress swear an oath to defend the Constitution against all enemies, foreign and domestic. May those who voted for the Protect America Act spend the rest of their lives looking over their shoulders, for they have ensured none of us will truly know whether those who would prey upon us are foreign, or domestic.

For the Thugs, disdain, with a grudging respect for their ability to get their way. For the Cowards, nothing but contempt.