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Monday, November 25, 2002

The new Miranda warning:
You have the right to confess. You have no right to an attorney. Anything you say or don't say or that we just made up may be used against you in a court of law, a military tribunal, or never.

Ted Olson and the rest of the Constitution Demolition Crew are supporting Oxnard California police who assert that the Miranda ruling does not include a "constitutional right to be free of coercive interrogation," but only a right not to have forced confessions used at trial. In other words, your government thinks it's okay for cops to basically torture you for information so long as they don't use what you say against you.

Police can hold people in custody and force them to talk, so long as their incriminating statements are not used to prosecute them, U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, say in their brief to the court. It "will chill legitimate law enforcement efforts to obtain potentially life-saving information during emergencies," including terrorism alerts, if police and FBI agents can be sued for coercive questioning, they add.

Beatings and torture are never legitimate law enforcement efforts, and Olson and Chertoff should be thrown out of their offices so fast that we'll hear the sonic boom here in Michigan. In the case coming before the Supreme Court next week, an Oxnard cop repeatedly tried to get a statement out of a man who had been shot five times and was being treated in the hospital. Recall that Ted Olson was the same lawyer who argued before the same Supreme Court two years ago in a successful attempt to stop vote recounts in Florida and give the White House to George W. Bush. And that same Supreme Court is still headed by William Rehnquist who in 1990 argued that the right against self-incrimination in the 5th Amendment was a "trial right." Police cannot violate this right when they force someone to talk, since "a constitutional violation occurs only at trial."

I don't have the whole text of Rehnquist's 1990 opinion, but it sounds like he was saying that it's okay for the cops to beat a confession out of you, as long as it's before the trial. Now maybe he's still saying that the confession can't be used in court against you, but even so it's too late for you. With your confession in hand they will almost certainly be able to scare you into a plea bargain before you ever get to trial. They could also use your coerced confession to find other witnesses willing to incriminate you, whether you are in fact guilty of something or not. I think the basic gist of most of this is that if you get arrested for whatever reason, your life is almost certainly ruined. You are presumed guilty, and the cops are free to use whatever means they want to get you to say whatever they want. And if none of that works the president can just call you an "enemy combatant."

Probably time to quote from the Declaration of Independence again:

We hold these truths to be self-evident: that all men are created equal: that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing to forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, It is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Hey, you Homeland Security drones, I didn't say that, Thomas Jefferson did! But I certainly agree with him.