Bombers and Police and the Law, Oh My!

Scale Versus Afghan Police Training with Italian Carabineri

We are beginning to see significant concern expressed in the non-MSM concerning the legal aspects of police behavior when alleged criminals are apprehended. While the events in Boston are the latest trigger, the concern applies to all law enforcement activity, at both federal and local levels and dating much further back and to the entire War On Terror’ fiasco.

The first concern applies to how law enforcement behaves regarding the alleged criminals or terrorists.

For current opinions on the matter, check here, here, here, here, and here.

On the one hand, the legal rights of the defendant(s) should be protected as a matter of simple justice. On the other hand, the needs of society must a also be considered. One of the primary roles of the judicial system is to balance these rights when they come into conflict.

As it now stands, law enforcement can arbitrarily proclaim a pressing need based on public safety concerns, to ignore the rights of the arrested, not read them their ‘Miranda rights’, provide access to legal counsel or even put them before a judge.

When illegally-obtained evidence is presented in court, it is thrown out. That does not necessarily mean the defendant is acquitted, just that a conviction must be arrived at via other, legally-obtained evidence.

If the authorities see fit to place the needs of their investigation above the rights of the defendant(s), any evidence acquired prior to the defendant(s) being Mirandized, brought before a judge and provided counsel should be inadmissible in court. I would add that even any evidence acquired later should be inadmissible if it is based on or acquired from the tainted information.

This has always been standard procedure at least in theory, but now we are beginning to see prosecutors argue that the tainted evidence should be admissible on the grounds that obtaining it was necessary for public safety. The tainted evidence may well have served to protect the public (for example: locating unexploded bombs), but that does not the mean the evidence is not ‘legally tainted’ and thus inadmissible in court.

In our adversarial justice system, we expect the prosecutor to push for conviction just as we expect defense counsel to push for acquittal, but making tainted evidence admissible would put the judges on the side of conviction rather than on the side of justice.

If law enforcement knew that their processes might lead to evidence being rejected in court, they might be more careful about over-riding legal rights on the basis of public safety concerns, but this could only happen if the courts make it clear they are operating in the interests of justice rather than just as an adjunct to police, FBI, DHS and/or the prosecutor’s office.

The second concern I have seen raised is the the propriety of law enforcement to effectively (and on questionable authority) establish martial law, to lock down a neighborood or an entire city or metorpolitan area, as happened in Boston. The resulting door-to-door searches without even the legal cover of a warrant is also questionable. Granted, a warrant is not needed if police are in ‘hot pursuit’, as would be the case if they chased a suspect into a buildiing, for example. Beyond that, a warrant is specific to the both the information beihg sought (in this case the suspect) and to the location. I don’t know if ‘Boston’ or ‘Watertown’ would be specific enough for legal purposes, but it seems questionable.

In this regard, one wonders what would have happened if the events had transpired in a town full of NRA-besotted,, over-armed, anti-government, paranoid Teabaggers. Jackbooted thugs invading our homes! Obama probably sent them to take our guns!

Of course, if such a town were not locked down, we’d probably have an unregulated militia roaming the street, ‘helping the police’ and shooting each other.

Guess every cloud has a silver lining. 🙂

The so-called Progressive media, mostly bloggers, along with the relevant UN agencies and the ACLU have long been protesting the practices of our War On Terror and it’s violation of the US Constitution, the UN charter and resolutions, the Geneva Conventions, basic human rights and common decency. Both houses of Congress, past and current Administrations and governmental agencies from NSA, CIA, FBI, DHS and the US Army, right down to your local police department and everyone in between have explicitly or tacitly adopted ‘kill them all and let God sort them out‘ mentality. The Powers-That-Be are now unofficially and sometimes officially (and often violently) suppressing any dissent. Since the US is (at least for the foreseeable future) the paramount military/police power in the world and given the technology and firepower available to the government, the future of justice and civil rights/liberties seems bleak.

I wish I felt this way simply because tomorrow is Monday, but I’m afraid that’s not the reason.

26 Replies to “Bombers and Police and the Law, Oh My!”

  1. JPD- as this plot’s Canadian, and we know your interest in matters Iranian, so perhaps you can parse:
    http://www.cbc.ca/news/politics/story/2013/04/22/pol-terror-plot-ontario-quebec-arrests.html?

    ‘RCMP Assistant Commissioner James Malizia said the two accused were getting “direction and guidance” from al-Qaeda elements in Iran.’

    and

    http://www.guardian.co.uk/world/2013/apr/23/canada-passenger-train-terrorist-plot

    Bruce Riedel, a CIA veteran who is now a Brookings Institution senior fellow, said al-Qaida has had a clandestine presence in Iran since at least 2001 and that neither the terror group nor Tehran speak openly about it.

    “The Iranian regime kept some of these elements under house arrest,” he said in an email to the Associated Press. “Some probably operate covertly. Al-Qaida members often transit Iran travelling between hideouts in Pakistan and Iraq.”

      1. The timing also seemed interesting to me, given that the threat was still- according to the account- very much in the planning stage.

        If it weren’t from our Canadian allies, I would suspect, as an ignorant Yank, the Canadian Prime Minister giving Obama the finger.

        But no point in discussing it further here:-)

        -mole

        1. Uh, I doubt it’s anyone giving anyone the finger. The nightmare scenario for anyone in the business is that you identify and infiltrate a plot but have it go ahead before you can wrap it up. Not, as they say, career enhancing. One could reasonably foresee that seeing the aftermath of the Boston attacks might motivate these guys to move from planning to the attack phase or even recast their attack into something more closely resembling Boston (hell, there’s even a marathon scheduled here for the 5th). Given that, if you have the evidence you roll them up. It’s a no brainer.

          As to the Iran link, well, I’d note that “direction and guidance” covers one hell of a lot of potential territory. Reading the pieces, it strikes me as likely that they left the thing in play as long as they did because they wanted more insight into the exact nature of this direction and guidance. The exact nature of the Iran / al-Qa`eda relationship is one of the more ambiguous areas of the whole al-Qa`eda phenomenon. Any strategist worth their salt looks at the centrality of these types of capabilities to Iranian grand strategy and keeps their eye firmly on the possibility of Iranian state involvement, regardless of how divergent al-Qa`eda’s ultimate aims and ambitions are from those of the Iranian state. In this business it rather seems that strange bedfellows are the norm rather than the exception, particularly when they are under pressure, and both parties very much are.

          Based on my quick read of the pieces, I would go with a minimalist interpretation of Iranian links, rather than a maximalist one:

          RCMP Assistant Commissioner James Malizia said the two accused were getting “direction and guidance” from al-Qaeda elements in Iran. There was no information to suggest the attacks were state sponsored, he said.

          That said, it’s clear that the Iranians are under considerable stress and the really striking amateurishness of some of the things they appear to have been involved with seems to indicate that they are really hitting the bottom of the barrel in terms of irregular capabilities and/or there’s some considerable freelancing going on. In the absence of further evidence, my best guess would be that this was something that the Iranian state was not involved in, though some personalities that aspire for a greater role in that state apparatus might be (i.e., it’s not top down, but might be freelancing up).

        2. One thing did belatedly occur to me timing-wise. It is potentially significant that we are currently having third reading on an anti-terrorism bill originating out of the Senate that seeks to reinstate some provisions that were sunsetted in 2007.

          1. I was thinking that the careful wording of these articles reminded me of the US cases that turned out to be crap, but served their short term political purposes. Does Canada have a color code? 😉

  2. The problem is that unthinking people (including, by definition, politicians) want to eat their cake and have it, too.

    I propose a simple question:

    Suppose you knew for certain that violating Dzokhar Tsarnaev’s constitutional rights would enable you to prevent further explosions and the loss of many lives but would let him escape scot-free:

    Suppose you knew that granting him those rights would result in further blasts and fatalities but assure his conviction:
    What would you choose?

    That sound you hear is heads exploding all over rightwing America.

    I personally have no problem with violating Tsarnaev’s rights in order to prevent further mayhem. I just accept the possibility that doing so may jeopardize the justice of his eventual legal disposition. To me, it’s a trade-off, one which the UltraRight, pseudo-patriots are unwilling to accept.
    But then, I care more about justice than revenge. And I’m also prejudiced, being a subject of the incipient police state rather than an apparatchik in it.

    1. A world where you know things for certain doesn’t require any of the protections that we need against abuse of individuals. The question doesn’t reflect any real world situation, however much our jumped-up emotions may want certainty, especially certainty for blame.

      1. Agree, certainty is never absolute in the real world, which is why those claiming absolute certainly about his guilt and deserved ‘just deserts’ are ipso facto electroencephalographically challenged.
        My point was that those loudly shouting “Off with his head!” really couldn’t care less about facts, justice, civil rights, the Constitution or even the victims. They just like to pose as patriots and this was an excuse. They feel that being vicious toward a presumed enemy makes them more patriotic than the next guy, certainly better than those treasonous liberals.
        It reminds me of all the drivers whose cars sprouted little flags after 9/11 and felt not sporting one was somehow treason and callousness.

  3. from FT:

    Boston suspect formally charged
    http://on.ft.com/12Ck0ub

    from WAPO :

    http://www.washingtonpost.com/blogs/the-fix/wp/2013/04/22/experts-enemy-combatant-designation-would-make-no-sense-in-tsarnaev-case/
    ——————————————–

    BTW:

    The following “parse this” phrase by Sen. Graham is quoted from a radio interview
    (don’t have the transcript so it may be a WAPO mangle) :

    The senator protested against “this idea of if you can find an American to kill us they can have a legal safe haven.”

      1. JPD- not pulling you over for sarcastic interruption as you gave one good link to watch earlier and you’re not an American…;-)
        moving right along……

        -mole

    1. Seth Mnookin was on the scene and says this is BS (in his Twitter feed): https://twitter.com/sethmnookin I’d post the New Yorker piece as well, but WordPress will throw my comment into adjudication hell. Given the choice between a source that teaches at MIT and Lindauer, I know which one I’d pick…

      1. Assuming the video is not of the older brother’s arrest, it would be interesting to know what it really is – and how it got distributed as such and by whom. I understand a lot of conspiracy nuts are ‘fact-deprived’, but this implies a deliberate attempt to start a conspiracy theory. Qui bono? Just so TV station scoring points?

        BTW: Your thoughts on Lindauer – is her whole schtick fraudulent paranoia? What about Sibel Edmonds?

        1. This appears to be video of a guy that was detained at the time of the shootout that killed the older brother. Near as I can tell he was detained for “walking while swarthy”. Because of the IED threat, they had him stripped down, questioned him and released him. If they have any sense at all, they are keeping mum on who he was as part of their duck and cover hoping that they don’t get hit with a massive suit. Personally, I think buddy did a real good job at not shitting himself empty, because I sure as hell would have been flapping.

          My guess would be that the folks posting this actually believe this interpretation. One of the things that one always has to be conscious of in the modern Internet-mediated world, is that folks have a really high degree of faith in whatever “data” they receive over it. They don’t seem to take into account that what any of us see through this medium is a tiny, looking through a soda-straw, view of things. Only rarely do we have access to a range of facts that allow us to adequately test hypotheses, but that doesn’t appear to matter. An example of this type of thing would be the foofera on reddit where they were passionately haring off after entirely the wrong guys, building ever more elaborate cases on what I’m given to understand was rarifiedly thin “evidence”.

          As to Lindauer, my understanding is that they declined to prosecute her because they did not believe her fit to stand trial. That seems to me to be merciful. I’ve read a goodly amount of stuff about Edmonds and it seems to me that while there is some truth to a few of her allegations, the maximalist case alluded to is beyond what can be sustained by the available evidence. One of the little things that I have learned about this business is that one should be very critical in treating the assertions of people who speak of intelligence matters and then seek to stay in the spotlight. Most of the folks who are good at this business get back into the shadows as expeditiously as possible (and are only dragged out into the light in the first place by exigent circumstances).

          1. I do recall finding Susan Landauer and Sibel Edmonds much more believable than those who threatened/questioned them. I do remember that the staff of one of the hospitals where Landauer was confined testified in one court hearing that she exhibited none the the symptoms they would have expected to see and that not everyone believed she was ‘delusional’ when she said could prove that she was a CIA ‘asset’ in a trial.

            I also seem to remember that whistle blowers have had a pretty hard time of it these last several years.

            1. You are on target regarding Lindauer’s hospitalization. I wrote about Lindauer’s case to some extent here. This piece relied on original documents from the psychiatric hospital and shows that the request for forced medication came from the US Attorney’s office not the hospital (at least originally).

              Did Justice Order Forced Psych Medication? Friday, 12 September 2008, 12:09 pm Column: Michael Collins

              Judge Michael Mukasey conducted the hearing without the knowledge that the hospital had originally not recommended medication. He also lacked Lindauer’s history from a DC area psychiatrist who evaluated her after her arrest and months of individual therapy. The psychiatric eval denied any psychosis and the PhD level therapist attributed Lindauer’s behavior to PTSD from the arrest and treatement afterwards.

              Her last counsel, Brian Shaughnessy, was quite distinguished in the DC legal community. Meeting him and talking about the case was a bonus in the writing process. He had all the evidence, shared it, and was convinced that the case against her was a set up. My take on her treatment and Shaughnessy’s have nothing to do with the tape in qestion. I have not seen it. But I did want to commend you for pointing out this civil liberties and human rights autrocity.

      2. We might note that Lindauer did not present herself as a source of the bite of video. She did say that it was not confirmed. Mnookin’s book on vaccines looks pretty good, but I’m not sure why being employed to teach scientific writing at MIT would make a source credible. Of course, it would be more credible than being a professor at Harvard.

  4. justice and civil rights/liberties

    How quaint. Why do you think the Miranda process was established by the US Supreme Court? Because the authorities were restrained and obeyed the law?

    The authorities were not restrained by the law and do not want to be so restrained in the future. The largest terror organization in the world is headquartered in DC. IN addition employment in the US is fraught with terror.

    The whole society runs on terror and fear.

    1. Ray’s thoughtful piece and measured tone allow the real issues to emerge – why are authorities beating their chest about not Mirandizing this guy and why the lock down. They do it because they can, which is why some people get very upset by this. Alan Dershowitz, who is generally hard line on ‘terror,’ was appalled on the Miranda question, said they should be given the rights without any question about it.

      Right now, we live in a violent society in terms of crime, one where the government works with business to steal the peoples wealth, and keey 2.5 million under lock an key working for the most favored corporations that get prisoner labor for a pittance. We have an establishment association issuing a report on continuous torture from Bush II through today with no instance of helpful information emerging. And, of course, our rulers don’t hesitate to invade de facto or by proxy as a front line solution. Something has to change because the values of the rulers are in violation of the stated wishes of the majoity and their values as well.

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