Tuesday, April 30, 2013

Whither the Sixth Amendment?

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. ("Amendment VI" to the U.S. Constitution. Emphasis added)

A couple days ago, I happened upon an article in my home-town rag, The Los Angeles Times. One brief passage in particular about the pre-Miranda interrogation of Dzhokhar Tsarnaev caught my eye:

Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. (Emphasis added)

Wait, what?

The 'Public Safety Exception' to the Miranda rule does not allow the government to deny suspects their rights, e.g., to remain silent or to counsel. It does allow the government to put aside temporarily its obligation to read suspects those rights. In other words, Tsarnaev had the right to an attorney, whether he was advised or not, and he attempted to exercise that right by requesting an attorney.

If the Times' reporting is to be believed, the government chose to ignore Tsarnaev's request for an attorney and kept right on questioning him.

I'm not an attorney, more like an attorney manque, nurtured on episodes of Perry Mason and Law and Order. But from where I sit, the government willfully violated Tsarnaev's right to an attorney. The Public Safety Exception never allows the government to deny suspects their rights. It only allows the government to delay informing suspects of their rights for a brief period. There is a difference.

As soon as Tsarnaev requested an attorney, whether during the Public Safety Exception or otherwise, the Sixth Amendment required the government to provide him with access to one. So, please, someone, anyone, tell me the U.S. did not jeopardize its entire case by violating Tsarnaev's Sixth Amendment rights.

Wednesday, April 24, 2013

What is "Blowback"?

Salon.com is reporting that Dzhokhar Tsarnaev, suspected in the Boston Marathon bombing, has confessed from his hospital bed to U.S. interrogators that he and his brother planted the bombs to protest the U.S. wars in Iraq and Afghanistan. This might make a good time to discuss 'blow back' and what it is and is not.


Put bluntly, the Brothers Tsarnaev's bombing attack is not 'blow back'. The attack may indeed be retaliation. But "blow back" has come to mean a particular type of reaction to U.S. foreign policy. Specifically, according to writers like Chalmers Johnson, blow back occurs when the American people are largely kept in the dark about the consequences of America's foreign policy until the inevitable and eminently predictable blow is struck against her. The American people are thus mystified at this display of seeming 'motiveless malignity.'

Since it can be safely assumed that the American people were largely aware of the consequences of the invasions and occupations of Iraq and Afghanistan -- whether they disagree or not with those consequences -- the Marathon Bombing hardly constitutes blow back.

Contrast Tsarnaev's alleged motive with Osama bin Laden's fatwa, issued prior to 9-11, that authorized the attack upon the U.S. In his fatwa, bin Laden mentions several grievances, two of which strike me as ones largely hidden from the American public: the preventable deaths of 500,000 Iraqi children during the decade of the 90s as a result of U.N. sanctions on so-called dual use items (sanctions maintained largely at the insistence of the U.S.) and the continued presence and basing of U.S. troops on Saudi Arabian soil after the end of the First Gulf War (aka "Operation Desert Shield\Storm"). In each of these cases, the American public was largely unaware of the effects its foreign policy was having upon the people of the Middle East. Thus, when 9-11 occurred, it could rightly be seen as an instance of 'blow back,' given that Al Qaeda's response seemed to lack any motivation, so much so as to allow Bush to claim ludicrously that AQ hated us 'for our freedoms.'

While I have been saying, since 2001, that attacks like the Marathon Bomber were inevitable and would come when the people of the Middle East and Central Asia were ready to strike and not according to our timetable, I have also never felt that attacks like the Marathon Bomber constitute 'blow back.' In the case of the Marathon Bomber, the motives were already known or should have been known.

No American can therefore say that he or she could not have seen this coming. Indeed, a more pointed question is why it did not come sooner. Nor can any American any longer hide from the probability that attacks like these will continue as long as we contiinue our murderous and criminal policies in the Middle East.

I found the story and images of the 8-year-old victim, Martin Richard, particularly poingant. In one such photo, Richard is seen holding a sign that says "No more hurting people . . . Peace." Surely one so young possessed of such wisdom should be inoculated from the murderous consequences of the Bush Junta and its successor regimes. Indeed, I had flattered myself that my 8 years of bi- and thrice-weekly vigiling in the streets of Los Angeles had similarly inoculated my wife (maker of my signs) and me. Alas, I see now that such is fond delusion. And, if I'm being honest with myself, it is fond delusion. For where is the outrage for the deaths of the 12 Afghan children killed in a NATO airstrike in Afghanistan just 9 days before the Marathon bombing? There is no outrage, just a numbed and deafening silence. Those 12 Afghan children were just as innocent as Richard, lives as full of promise as his. And those 12 Afghan children are suddenly dead, just as Richard is. Perhaps Richard would have been the next Einstein, perhaps one of those Afghan chidlren would have been the next Salk. We shall never know.

But I do know that further attacks on us will come until the foreign policy of the United States undergoes a radical change and until the perpetrators of all the death, torture and destruction have been held fully to account. Until both conditions are satisifed, we will not be experiencing blow back. But we will be experiencing retaliation. There is a difference.

Tuesday, April 23, 2013

50th Anniversary of the Death of an American Hero

A little reminder popped up on my Yahoo Calendar this morning that today marks the 50th anniversary of the death of a mostly unsung American hero: William Lewis Moore.

Moore was killed on April 23, 1963, while walking down a highway in rural Alabama. He was en route to Mississippi Governor Ross Barnett's office in Jackson, MS to deliver a letter urging the segregationist Barnett to accept racial integration.

Moore's body was discovered along that Alabama highway, shot by two .22 caliber bullets, about an hour after he had been interviewed by a reporter from a local radio station. As far as I know, no arrest has ever been made in the case and Moore's killer(s) have never been brought to justice.

Just one among many victims of Southern racial prejudice. But Moore is noteworthy for another reason: Moore had suffered a nervous breakdown a few years earlier and had subsequently been diagnosed with paranoid schizophrenia.

Moore began his activism by campaigning for the rights of the mentally ill and subsequently segued into civil rights for African Americans and all minorities.

I posted this to make sure Moore's memory lives on and to remind everyone that mental illness is just like any other illness. Some of its victims can behave villainously. Some, like Moore, can behave heroically.

RIP William Lewis Moore. This country and this world are a better place because you walked our highways, if only for a short while.


Sunday, April 21, 2013

Dzhokhar Tsarnaev and the Eyes of the World

I can't believe it. The U.S. Government has announced that it will not immediately read Dzhokhar Tsarnaev his Miranda warning, invoking the so-called 'Public Safety Exception' as its so-called rationale. This Exception, created by the Rehnquist Court in 1984, allows authorities to question detainees for up to 48 hours about threats to the public or to law enforcement before advising the detainee of his or her various rights, notably the right to remain silent and right to an attorney. Should the detainee speak during this Public Safety Exception period, his or her comments can be admitted into court to be used against him.

OK, sure, you say. The police need to find out if there are any other threats to the public that the detainee knows about and that compelling state interest outweighs the need to keep the detainee fully informed of his rights. What's the problem?

Ah, but there's the rub. Because, you see, the detainee already has the right to remain silent. Tsarnaev could know about 6 more bombs set to detonate in the next 24 hours and he has the absolute right to remain silent about them. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to silence. Same goes for his other rights. Tsarnaev has an absolute right to request an attorney at any time. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to an attorney. And all the Public Safety Exception does is relax the requirement that the government Mirandize Tsarnaev before seeking testimony that it then uses in a case against him.

So Tsarnaev has these rights already, it's not the government's  fault if Tsarnaev doesn't understand his rights and Public Safety demands that the government not inform him of these rights so that it can try to elicit information from him that it can use against him, provided that information deals with issues affecting the Public Safety.

See a problem there? Well, let's see. Tsarnaev will be facing the death penalty since the case is now in U.S. jurisdiction (as 'terrorism') and the government basically can try to trick him into further implicating himself.

Jesus H. Christ, don't these legal beagles in the Justice Department understand that the entire civilized world (most of which resolutely opposes the death penalty in all cases) is watching us to make sure that we really have left the days of the Bush-Cheney torture regime behind? Anything that gives the appearance that we are playing fast and loose with Tsarnaev's rights in our system and the world will be entitled to claim that the Bush-Cheney torture regime was not an exception but is part of a new norm.

President Obama, I thought you were some hot-shot constitutional lawyer, law professor or both. Do you really intend to give the rest of the world the impression that we are playing fast and loose with the life of a 19-year-old by playing legal tricks on him?

Come on, Obama, do the right thing. Instruct prosecutors to Mirandize Tsarnaev as soon as he is capable of understanding the Miranda warning. If there truly is a public safety concern - and I think there might be - immunize Tsarnaev for any information he gives about future bombs or other conspirators. But whatever you do, don't try to trick him into further implicating himself. The whole world is watching. You are better than this and America is better than this. And the whole world is watching.


Saturday, April 20, 2013

A Modest Proposal for the Public Safety

Being that the Public Safety may be so manifestly threatened by Dzohkhar Tsarnaev, I hereby propose that those who hold him in custody interrogate him to find out about any other devices and or conspirators of which he certainly has knowledge.

The method should proceed as follows. Tsarnaev should be asked once nicely if there are any other bombs. Should Tsarnaev choose to remain silent, a bamboo shoot shall be placed under the fifth fingernail and the question asked again. Each repeated instance of silence should result in yet another bamboo shoot being shoved up under each of the perpetrator's fingernails.

To those who might argue that Tsarnaev will feel great pain and say anything to get his interrogation to stop, I would humbly submit that it is after all Tsarnaev's choice to remain silent. All he has to do to get the interrogation to stop is talk. Why is that so difficult for the faint of heart to understand?

Following the perpetrator's confession that there indeed are other bombs, he must then be asked nicely if there are any other conspirators. Upon his first instance of silence, the perpetrator is to be placed upon an inclined board, his mouth forced open and one quart of water poured down his throat. Further instances of silence shall result in additional quarts of water being poured until the perpetrator confesses all other conspirators.

Again, to those whose conscience might intrude at this point to offer qualms about drowning Tsarnaev or causing him to fear drowning, I would meekly submit that Tsarnaev should have thought of that before endangering the Public Safety. Only those who hate our freedoms could place the welfare of a scoundrel before the Public Safety.

Furthermore, should Tsarnaev fail to divulge the required information, I propose that medications necessary to his survival be withheld and that he be made fully aware that he will only receive those medications should he cooperate.

It is not torture if the Public Safety demands it. I humbly offer this modest proposal in the interest of promoting the General Welfare of our Republic, both now and in the future.

Thursday, April 18, 2013

Further Reflections on the Boston Marathon bombing and America's Curious Double Standard

If the past 72 hours have revealed anything, it is that America can dish it out but we can't take it. Why, just 9 days before the Boston Marathon bombing that killed 3, a U.S.\NATO airstrike in Afghanistan killed 17, including 12 terrorists disguised as children. One heard nary a peep about this war crime in the mainstream media. Even after the death of 8-year-old Martin Richard at the Boston Marathon, I have yet to find a single mainstream media source reporting on the 12 Afghan children killed in that single airstrike.

The rest of the world must look at us and shake its head. We dish out pain, death and suffering on a massive scale to the third world on a quasi-daily basis. But let even one tiny little taste of that destruction we so casually and cruelly hand out to others land upon our shores and, oh, the gnashing of teeth and rending of garments that ensues.

I love Boston - I was born there in 1959. I have traveled there a couple times as as adult and each time have found myself loving the city and its people and culture of learning and quiet elegance. I feel a deep sorrow for the victims of the Marathon bomber.  But I also know that America has incurred an enormous karmic debt, one that history, human experience and the cosmos insist must be paid by the blood of our innocents who are no more or less innocent than those 12 Afghan children killed so suddenly and without warning a week prior.

R.I.P Bostonians. R.I.P Afghans - you shall all be missed and never forgotten.

Wednesday, April 17, 2013

Further Reflections on the Boston Marathon bombing and Finding a Fall Guy

Well, it has now been two days since the bombing at the Boston Marathon that killed 3 and wounded over 170. No one has come forward to claim any responsibility and police have not named any suspects in the attack.

My wife and I talked about this last night and, giving our paranoia free reign, tried to decipher whom we thought the government might try to lay this on. Would it be Iran or North Korea (my theory) or would it be the 'Left' such as it is these days via Occupy. My wife leans toward the latter. I told her that I don't think the Establishment views Occupy as much of a threat any longer, but she thinks it still feels threatened by Occupy\Anonymous and might use the Boston Marathon bombing as the pretext to smash what remains of any organized resistance.

Our paranoid speculation begs the question that all progressives and leftists should be asking themselves. To wit, what are the chances the government and law enforcement will accuse the actual perpetrator of the crime(s)? Now that we have seen with our own eyes the government invade and occupy countries that had nothing to do with 9-11 and smash up Occupy when it was doing nothing more than exercising precious rights, neither my wife nor I give the government much credit any longer for behaving as honest brokers in this matter.

And really why should we? Obama excoriates the Boston Marathon bombing as a 'heinous and cowardly act,' while reamining utterly silent on his drone policies that have killed far more innocents using exactly the same tactics. Obama promises that the perpetrators of the Boston Marathon bombing will experience the full weight of justice while, meanwhile, Bush and Cheney walk around free men, even as an Independent Review has concluded in a 557-page report that the U.S. Government and its high officials created and engaged in a systemic torture regime from 2001-2009.

So, taking my wife's fears a step further, let's say the government tries to pin this on some group of progressives or the Left. What might we then see? Would it be a return of the Palmer Raids and repression to equal that experienced by Americans of Middle Eastern descent after 9-11? Can any progressive or Leftist who has expressed disagreement with the policies of Empire expect to find him- or herself in the crosshairs? At what point should we start to worry that we have become a convenient target of opportunity in this never-ending Global War on Terror?

Tuesday, April 16, 2013

The real lesson of the Boston Marathon bombing

Please allow me to be blunt. After 12 years and umpteen gazillion dollars spent on the eerily Nazi-esque "Homeland Security," we really are not one whit safer than we were on September 10, 2001. The U.S. government and all the local security apparatuses have proven that they are singularly inept when it comes to providing "security." Oh sure, they talk a good game and can easily terrorize innocent grandmothers and tots in baby buggies. They can terrorize Occupy demonstrators. But when it comes to actually protecting anyone in the 99%? Um, not so much.

The real lesson of the Boston Marathon bombing yesterday is that Americans should avoid public venues with large crowds becauuse YOUR GOVERNMENT CANNOT KEEP YOU SAFE! The policies your government has pursued over the past 12 years and counting have created far more dangers than existed before.

Here's a suggestion for providing real Homeland Security: stop bombing every third-world country to smithereens upon the flimsiest of pretexts. Abraham Lincoln 160 years ago said it best: "The best way to get rid of an enemy is to make him a friend."