The Stripping Of Personal
By James Donahue
Everybody who watches television or movies about police
stories knows about the Miranda warning. Because of a 1966 Supreme Court ruling, police officers have been required to
read a list of personal civil liberties as a part of police arrest and questioning.
The very first line of that document reads: "You have the
right to remain silent. Anything you say can and will be used against you . . ."
If you have been alert you may also have noticed that there
has been a controversy over the reading of the Miranda warning to people charged with cases linked to terrorism or attempted
terrorism. Some of our legislators are trying to introduce laws stripping anyone accused of plotting against the country of
their citizenship and their Constitutional rights.
The assault against the Miranda ruling began as early as 1984
when law enforcement agencies won a “public safety exemption” that gave them the right to interrogate suspects
without reading them their rights if they believed a serious threat was imminent.
And now, in the wake of the recent high-profile arrests of
the failed Times Square car bomber and the failed Detroit underwear bomber, U. S. Attorney General Eric Holder is asking Congress
for an even broader relaxation of the ruling when interrogating terror suspects.
White House political advisor David Axelrod told CNN this
week that President Obama is amenable to Holder’s idea. He said the president is “open to looking at” changes
in the Miranda rule.” Holder is reportedly asking for a new law that lets interrogators question terrorism suspects
for lengthy periods before informing them of their rights.
There has been a strange argument that reading a would-be
terrorist his or her rights will cause this person to clam-up and not give authorities the information they need to find the
dastardly thugs who put him or her up to whatever it is this person is accused of doing. This is assuming, prior to due process,
that the accused person is guilty of doing something wrong. Is something wrong with this picture?
This twisted way of thinking appears to be gaining popularity
throughout Washington. To date, Senators Joe Lieberman, Lindsey Graham and John McCain and Congressman Peter King are all
proposing legislation that would strip people of their citizenship if they have been merely accused of an act of terrorism
or being associated with a foreign terrorist organization. Such legislation, they argue, not only would relieve law enforcement
of having to apply the Miranda warnings, but would strip such people of all of the rights guaranteed in the U. S. Constitution
and allow “quick justice” for all.
In other words, it appears that they would like to strip our
nation of everything that has made it great and turn America into a banana republic.
In an essay on this subject recently published on his personal
blog page, Vinay Lal, history professor at UCLA, warned against such legislation. He wrote: “When anti-terrorist legislation
is ‘normalized,’ treated just like other proposed changes and additions to the law, the consequences for democracies
must be perilous. This legislation becomes fraught with hazards greater than the perils from which it is supposed to rescue
Factions of the Miranda ruling have especially been under
attack since 9-11. The Supreme Court in 2004, for example, upheld laws in 21 states that give police the right to ask people
their name and to jail anyone that fails to cooperate. In other words, police now can turn our “right to be silent”
into a criminal offense.
Privacy rights advocates say that the ruling forces anybody,
even innocent people questioned randomly on the street, to give authorities information that can be used in broad data searches.
A name opens the door to police computer searches that produce
driver's license numbers, social security numbers, credit card numbers, past arrest and conviction statistics, debt information,
bank records, and even medical records.
That court decision hinged on a case brought by Nevada rancher
Larry Hiibel, charged with a misdemeanor because he refused to give a deputy his name and show identification. Hiibel claimed
it was a violation of his civil rights.
The Fifth Amendment protects people from giving testimony
against themselves in criminal proceedings. That usually applies to court testimony but it might be expanded to include the
right of free citizens from being required to randomly turn over information to police officers without due process of law.
The Fourth Amendment protects people from unreasonable search
and seizure of property.
The court narrowly ruled, however, that forcing someone
to give police their name does not violate their Fourth Amendment from unreasonable searches, and that name requests do not
violate Fifth Amendment rights against self-incrimination.
Justice Anthony M. Kennedy, writing for the majority, stated
that "one's identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request
to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances."
On the dissenting side, Justice Paul Stevens wrote that forcing
people to divulge their name goes too far. "A name can provide the key to a broad array of information about the person, particularly
in the hands of a police officer with access to a range of law enforcement databases."
Justice Stevens is retiring from the court this year and
the process of selecting a successor is only now beginning. We expect a fierce battle by legislative conservatives to prevent
President Obama from appointing anyone offering the kind of balance that Stevens provided in that court.
At the heart of the Hilbel decision was, as previously stated,
the nation's paranoid-based war on terrorism. Lawyers for the justice groups argued that a decision in favor of the rancher
would have protected terrorists and encouraged people to refuse to cooperate with police.
In their haste to clamp down on terrorist acts, and because
of the mass fear being perpetuated by the media, a lot of people in this country appear to be going along with a willingness
to surrender our long cherished rights. These rights include the right to remain silent, the right to be represented by an
attorney and the right to be considered innocent until proven guilty and the right to a fair trial before an impartial jury
of our peers before we are judged for alleged criminal acts.
Indeed, whatever happened to our old way of thinking? Whatever
happened to the way the media once reported on arrests of suspects in a criminal case? We can remember when the very names
of suspects were withheld from publication until the accused appeared before a judge. Today the media publishes pictures and
blasts names of “persons of interest” on our television screens before they are formally charged. Trial by media
is ugly and unfair.
Terrorist attacks, while despicable and senseless acts of
murder of innocent people caught in the wrong place at the wrong time, are not a new phenomenon. They have occurred on a small
scale even in the United States for about as long as the nation has existed. But attacks as massive and well-orchestrated
as the Oklahoma City Bombing and the events of 9-11 were extreme acts of terror that has added a new element of fear to the
We fear the terrorist bomb attacks because the media has taught
us to fear them. In reality, the odds of getting killed in such an attack are very low compared to other potential accidental
ways in which we all may be killed. A single airline crash, train wreck or a violent act of nature can be just as deadly.
Over ten times as many people died in automobile crashes in 2009 than all those who were killed on 9-11.
When looking at these attacks from this perspective, we ask
why it is necessary for us to give up our freedoms in exchange for government protection from something that we can’t
be protected from. All of the information gleamed from would-be terrorist suspects has only helped lock a barn door after
the horse escapes. No matter how hard we try to make sure “they” never use that form of attack again, new and
more ingenious ways of attacking us are devised. Every anti-terrorism law generated from the halls of Congress strips us all
of more and more of our Constitutional freedoms.
Osama bin Laden and his al-Qaeda organization has succeeded
in not only scaring the bejesus out of America, but causing us to turn our once free society into a form of a prison for everyone.