FacebookTwitterGoogle+RedditEmail

Constitutional Entropy in America

by JEFFREY ST. CLAIR

It is a somber measure of the accelerating pace of constitutional entropy in America that Alan Dershowitz, that avid advocate of torture, strutted forth as one of the few voices of restraint following the capture of young Dzhokhar Tsarnaev. When most commentators were making carnivorous howls for the bullet-ridden teenager to be stripped of his constitutional rights and declared an enemy combatant, Dershowitz, who has previously endorsed waterboarding suspected terrorists under the outlandish “ticking time-bomb” theory, urged the Obama administration to treat Tsarnaev as an ordinary criminal suspect, read him his Miranda rights and provide him access to an attorney.

This sensible legal advice, which is regularly used in cases involving mass murderers, serial killers and abortion clinic bombers, was promptly steamrolled by Eric Holder’s Justice Department as it rushed to invoke an “emergency exception” to abrogate Tsarnaev’s rights under the Fifth Amendment.

Citing only the most tenuous thread of legal authority, federal prosecutors and military interrogators subjected Dzhokhar Tsarnaev to sixteen hours of questioning, while he was cuffed to his hospital bed in the Intensive Care Unit. This sordid treatment was rationalized through the so-called Quarles Exemption, which derives from a 1984 Supreme Court case where New York police questioned an unarmed suspect in a rape case about a missing gun without advising him of his rights. Quarles soon pointed the police toward the weapon. Ironically, prosecutors chose not to charge Quarles with rape, but did try and convict him on gun charges, which he had essentially confessed to while in police custody. The cops later lamely cited an immediate risk to public safety as the reason for not issuing Quarles a Miranda warning.  That case was the subject of a scorching dissent by Justice Thurgood Marshall, who wrote that the ruling “endorsed the introduction of coerced self-incriminating statements in criminal prosecutions.”

Since 2010, the Obama administration has mounted an assiduous assault on the Fifth Amendment by boring even larger holes in Miranda protections. The first major blow was struck in the interrogation of the Times Square bombing suspect Faisal Shahzad. Like Tsarnaev, Shahzad was an American citizen. Like Tsarnaev, Shazad was detained and grilled for hours before being read his rights and offered an attorney. After softening up Shazad through the initial interrogation, the Times Square bomber eventually waived his rights and continued to blab away to the FBI about the logistics of his failed plot.

Sensing the keen prosecutorial advantages of this strategy, Holder sent a memo to the FBI in March of 2011 urging federal criminal interrogators to invoke the Quarles exception in domestic terrorism cases, using the rule to aggressively probe for information well beyond looming threats to public safety: “There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat,
Hopeless-Barack-Obama-and-the-Politics-of-Illusion-Book-Jacket-photoand that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

So the stage was set for the wide-ranging Tsarnaev interrogation. Over the course of more than two days, federal agents from the High Value Detainee Interrogation Group queried Tsarnaev, who was suffering from bullet wounds to his head, neck and legs, about every aspect of the bomb plot, about his family, his friends, his finances and his political and religious beliefs. Ignoring Tsarnaev’s repeated requests to consult with a lawyer, the inquisitors duly
extracted a full confession from the young man and selectively leaked some of his most incriminating statements to the press, so that even if a court eventually rules his pre-Miranda confession inadmissible at trial, the contents will already have been seared indelibly on the minds of potential jurors.

Even this sinister suspension of bedrock legal rights that reach back to the Magna Carta wasn’t enough to satiate the terror-hawks. The congressional warlords, odious figures like Lindsay Graham and Peter King, launched a frantic scramble to exploit the bombing by calling for expanded police and surveillance powers. Of course, this means fresh financial opportunities for the Homeland Security Complex, that ravening claque of consultants and contractors who are feasting at the trough of America’s last growth industry. Their loathsome lobbyists, many of them former Pentagon officials and CIA operatives, swirl like wraiths around the still smoldering ruins scenting out fresh opportunities to cash in. It is a morbid form of legalized looting.

In the wake of the bombings, Boston itself became a vast panorama of paranoia. Police entered homes without warrants, detained citizens without probable cause, shut down sprawling neighborhoods in a spastic search for a lone seriously wounded teen. Over a single night, the cradle of our revolution became fully pacified, docile, willing to offer up the most cherished liberties of the Republic without even being asked.

We’ve reached the end of something vital in America. The instruments of social control have become deeply internalized. The psychological conditioning no longer requires siege sirens or color-coded alerts. Now entire cities reflexively obey the dictates of authority and are snugly sequestered behind cordons of the mind.

Jeffrey St. Clair is the editor of CounterPunch. His most recent book (with Joshua Frank) is Hopeless: Barack Obama and the Politics of Illusion (AK Press).

A version of this essay was published in the May issue of CounterPunch magazine.  

Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: sitka@comcast.net.

Weekend Edition
February 12-14, 2016
Andrew Levine
What Next in the War on Clintonism?
Jeffrey St. Clair
A Comedy of Terrors
Ismael Hossein-Zadeh – Anthony A. Gabb
Financial Oligarchy vs. Feudal Aristocracy
Paul Street
When Plan A Meets Plan B: Talking Politics and Revolution with the Green Party’s Jill Stein
Michael Welton
Lenin, Putin and Me
Pepe Escobar
It Takes a Greek to Save Europa
Gerald Sussman
Why Hillary Clinton Spells Democratic Party Defeat
Robert Fantina
The U.S. Election: Any Good News for Palestine?
Linda Pentz Gunter
Radioactive Handouts: the Nuclear Subsidies Buried Inside Obama’s “Clean” Energy Budget
Thomas Stephens
The Flint River Lead Poisoning Catastrophe in Historical Perspective
David Rosen
When Trump Confronted a Transgender Beauty
Binoy Kampmark
Totalitarian Thinking, Feminism and the Clintons
Will Parrish
Cap and Clear-Cut
Victor Grossman
Coming Cutthroats and Parting Pirates
Ben Terrall
Raw Deals: Challenging the Sharing Economy
David Mattson
Divvying Up the Dead: Grizzly Bears in a Post-ESA World
Pete Dolack
More Unemployment and Less Security
Christopher Brauchli
The Cruzifiction of Michael Wayne Haley
Bill Quigley
Law on the Margins: a Profile of Social Justice Lawyer Chaumtoli Huq
Katja Kipping
The Opposite of Transparency: What I Didn’t Read in the TIPP Reading Room
B. R. Gowani
Hellish Woman: ISIS’s Granny Endorses Hillary
Kent Paterson
The Futures of Whales and Humans in Mexico
David Busch
Bernie’s Blinding Light
James Heddle
Why the Current Nuclear Showdown in California Should Matter to You
Michael Howard
Hollywood’s Grotesque Animal Abuse
stclair
Branding Tradition: a Bittersweet Tale of Capitalism at Work
Nozomi Hayase
Assange’s UN Victory and Redemption of the West
Patrick Bond
World Bank Punches South Africa’s Poor, by Ignoring the Rich
Mel Gurtov
Is US-Russia Engagement Still Possible?
Dan Bacher
Governor Jerry Brown Receives Cold, Dead Fish Award Four Years In A Row
Jennifer Matsui
Doglegs, An Unforgettable Film
Soud Sharabani
Israeli Myths: An Interview with Ramzy Baroud
Terry Simons
Bernie? Why Not?
Winslow Myers
Looking for America
Christy Rodgers
Everywhere is War: Luke Mogelson’s These Heroic, Happy Dead: Stories
Tony Christini
Death by Taxes (A Satire of Trump and Clinton)
Ron Jacobs
Springsteen: Rockin’ the House in Albany, NY
Barbara Nimri Aziz
“The Martian”: This Heroism is for Chinese Viewers Too
Charles R. Larson
No Brainers: When Hitler Took Cocaine and Lenin Lost His Brain
February 11, 2016
Bruce Lesnick
Flint: A Tale of Two Cities
Ajamu Baraka
Beyonce and the Politics of Cultural Dominance
Shamus Cooke
Can the Establishment Fix Its Bernie Sanders Problem?
John Hazard
The Pope in Mexico: More Harm Than Good?
Joyce Nelson
Trudeau & the Saudi Arms Deal
Zarefah Baroud
The Ever-Dangerous Mantra “Drill, Baby Drill”
FacebookTwitterGoogle+RedditEmail