May 7 (Bloomberg) -- In the view of certain members of Congress, the problem with constitutional rights in this country is that every American gets them. Once you are either born into citizenship or earn it through naturalization, it’s almost impossible for the government to take it away.
What has some lawmakers angry these days is that terrorism suspects get the full panoply of constitutional protections if, by some peculiar twist of fate, they happen to be American citizens.
With the arrest of a Pakistani-born naturalized American charged with trying to car bomb Times Square, citizenship seems suddenly like one of those bizarre legal technicalities that stand in the way of justice and national security.
It isn’t, and it doesn’t.
Yes, agents read Faisal Shahzad the same Miranda warnings, and the law gives him the same due process rights that the Constitution grants the rest of us, including who knows how many law-abiding citizens he was apparently trying to kill.
The law already allows cops to delay the Miranda warning under exigent circumstances, such as the possibility that another bomb is about to detonate.
Until they were satisfied there was no assault in the works, agents questioned Shahzad without reminding him he didn’t have to talk. That is also what they did with the Christmas Day underwear bomber, arrested at the Detroit airport.
It was only after initial questioning that authorities advised them of the right to remain silent and their right to counsel. In both cases, the suspects kept talking anyway.
“A stroke of good luck,” Senator John Cornyn, a Republican from Texas, called Shahzad’s chattiness.
“A serious mistake,” is how Republican Senator John McCain of Arizona characterized the Mirandizing of Shahzad.
It was no mistake. Nor was it a mistake when agents during the previous administration Mirandized shoe bomber Richard Reid and every other suspected terrorist arrested on U.S. soil, no matter their nationality.
But Senator Joseph Lieberman, already a proponent of citizenship-stripping for suspected terrorists, is hoping the outrage over Mirandizing Shahzad will help push a bill he introduced yesterday.
The Terrorist Expatriation Act would allow the de-Americanizing of anyone who supports any group the State Department says is a terrorist organization. An independent from Connecticut, Lieberman says the bill would merely update a 1940s-era law that says Americans who join forces with an enemy engaged in hostilities against the U.S. would lose their citizenship.
Difficult to Apply
First of all, the Supreme Court has made the existing law tricky to apply. A 1967 ruling said the government can’t force expatriation on an unwilling citizen. The court later said the government can revoke citizenship for someone it can prove intended to relinquish his rights, say by signing up with an active enemy.
Lieberman’s idea would go so much further than the current law. Supporting the wrong organization, one which may have educational as well as terror-mongering facets, is a far cry from taking up arms against your country.
And if the whole idea of the Lieberman law is to deny such a person the right to due process at the time of the arrest so that no Miranda reading is required, the timing is all wrong.
Let me here quote, of all people, House Republican Minority Leader John Boehner.
Taking Away Citizenship
“If they’re a U.S. citizen, until they’re convicted of some crime, I don’t know how you would attempt to take their citizenship away,” Boehner told reporters.
And of course you can’t convict a citizen of a crime without, ahem, giving him due process of law. And that includes protection against self-incrimination, the right to remain silent and the right to counsel.
The point behind the rigmarole is that without a fair trial, you can’t really know who committed what wrongdoing, who has been framed or who is the victim of mistaken identity.
In the unlikely event that Congress passes this bill, and in the even less likely event it is found to be constitutional, it couldn’t and wouldn’t apply retroactively to Shahzad, as Lieberman acknowledges.
The ultimate aim of those unhappy about Mirandizing possible terrorists is to make sure they get no civilian trial and instead get tossed into a brig to await a military tribunal, if we ever get around to it.
Oh, wait. We tried that with suspected dirty bomber Jose Padilla, a U.S. citizen arrested at O’Hare Airport in Chicago. He was kept in solitary confinement at a South Carolina naval brig for years. That brig thing-y didn’t work out so well, so Padilla wound up in a civilian trial where he was convicted on completely different charges and locked away for 17 years.
What is with this insistence on military tribunals anyway? For results, there is nothing like a good old-fashioned criminal trial in civilian court. More than 400 men and women charged with terrorism-related crimes have been tried and convicted in civilian court, sentenced to long prison stints and sent off to U.S. penitentiaries on American soil.
The precise number of suspected terrorists convicted in military tribunals since the Sept. 11 attacks is three.
Lieberman has come up with a drastic solution. Now all he needs is a Constitution that would allow it and, oh yeah, a problem that it would solve.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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