FacebookTwitterGoogle+RedditEmail

Constitutional Entropy in America

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.  

More articles by:

Jeffrey St. Clair is editor of CounterPunch. His new book is Bernie and the Sandernistas: Field Notes From a Failed Revolution. He can be reached at: sitka@comcast.net or on Twitter  @JSCCounterPunch

Weekend Edition
July 20, 2018
Friday - Sunday
Paul Atwood
Peace or Armageddon: Take Your Pick
Paul Street
No Liberal Rallies Yet for the Children of Yemen
Nick Pemberton
The Bipartisan War on Central and South American Women
Jeffrey St. Clair
Roaming Charges: Are You Putin Me On?
Andrew Levine
Sovereignty: What Is It Good For? 
Brian Cloughley
The Trump/NATO Debacle and the Profit Motive
David Rosen
Trump’s Supreme Pick Escalates America’s War on Sex 
Melvin Goodman
Montenegro and the “Manchurian Candidate”
Salvador Rangel
“These Are Not Our Kids”: The Racial Capitalism of Caging Children at the Border
Matthew Stevenson
Going Home Again to Trump’s America
Louis Proyect
Jeremy Corbyn, Bernie Sanders and the Dilemmas of the Left
Patrick Cockburn
Iraqi Protests: “Bad Government, Bad Roads, Bad Weather, Bad People”
Robert Fantina
Has It Really Come to This?
Russell Mokhiber
Kristin Lawless on the Corporate Takeover of the American Kitchen
John W. Whitehead
It’s All Fake: Reality TV That Masquerades as American Politics
Patrick Bobilin
In Your Period Piece, I Would be the Help
Ramzy Baroud
The Massacre of Inn Din: How Rohingya Are Lynched and Held Responsible
Robert Fisk
How Weapons Made in Bosnia Fueled Syria’s Bleak Civil War
Gary Leupp
Trump’s Helsinki Press Conference and Public Disgrace
Josh Hoxie
Our Missing $10 Trillion
Martha Rosenberg
Pharma “Screening” Is a Ploy to Seize More Patients
Basav Sen
Brett Kavanaugh Would be a Disaster for the Climate
David Lau
The Origins of Local AFT 4400: a Profile of Julie Olsen Edwards
Rohullah Naderi
The Elusive Pursuit of Peace by Afghanistan
Binoy Kampmark
Shaking Establishments: The Ocasio-Cortez Effect
John Laforge
18 Protesters Cut Into German Air Base to Protest US Nuclear Weapons Deployment
Christopher Brauchli
Trump and the Swedish Question
Chia-Chia Wang
Local Police Shouldn’t Collaborate With ICE
Paul Lyons
YouTube’s Content ID – A Case Study
Jill Richardson
Soon You Won’t be Able to Use Food Stamps at Farmers’ Markets, But That’s Not the Half of It
Kevin MacKay
Climate Change is Proving Worse Than We Imagined, So Why Aren’t We Confronting its Root Cause?
Thomas Knapp
Elections: More than Half of Americans Believe Fairy Tales are Real
Ralph Nader
Warner Slack—Doctor for the People Forever
Lee Ballinger
Soccer, Baseball and Immigration
Louis Yako
Celebrating the Wounds of Exile with Poetry
Ron Jacobs
Working Class Fiction—Not Just Surplus Value
Perry Hoberman
You Can’t Vote Out Fascism… You Have to Drive It From Power!
Robert Koehler
Guns and Racism, on the Rocks
Nyla Ali Khan
Kashmir: Implementation with Integrity and Will to Resolve
Justin Anderson
Elon Musk vs. the Media
Graham Peebles
A Time of Hope for Ethiopia
Kollibri terre Sonnenblume
Homophobia in the Service of Anti-Trumpism is Still Homophobic (Even When it’s the New York Times)
Martin Billheimer
Childhood, Ferocious Sleep
David Yearsley
The Glories of the Grammophone
Tom Clark
Gameplanning the Patriotic Retributive Attack on Montenegro
FacebookTwitterGoogle+RedditEmail