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Attacking Miranda
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The Stripping Of Personal Freedom


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 the nation.”


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 nation.  


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.