Miranda Overseas - Introduction

One of the arguments justifying indefinate detention of detainees without charge in Guanatamo Bay was the constitutional right to habeas corpus did not apply to non-citizens overseas.  In June 2008, the Supreme Court repudiated this reasoning in Boumediene v. Bush, holding that non-citizens in American custody in Guantanamo Bay are indeed entitled to the constitutional right of habeas corpus.  But the question remains as to whether Boumediene was a narrow or a wide decision; the question of other constitutional rights overseas remains ambiguous.  In particular,  the Supreme Court has not ruled on the overseas application of other constitutional rights including the Fifth Amendment right against self-incrimination, as interpreted in Miranda v. Arizona.

Miranda is more than just a forty-six year old Supreme court case on legal and social policy; it has become part of American culture.  Unlike the much of the minutia of law and legal procedure that only lawyers deal with, even the average layperson has heard of Miranda.  But this widespread knowledge of Miranda makes it ripe for political posturing, especially on whether Miranda should apply to non-citizens overseas.  One Democratic congressman proclaimed "[t]here's not a single member of this Congress that believes that Miranda warnings should be given to terrorists."  Similarly, one law professor noted that after September 11, "the notion that terror suspects would be given Miranda warnings seems almost quaint."  The political edge of this issue seems to be citizenship status: the former presidential candidate John McCain was criticized from right and left alike when he suggested the accused Times Square bomber, an American citizen, should not have been given Miranda warnings.  [For an analysis of the merits of this argument, see a forthcoming article Miranda Overseas - Defining Miranda.]

But these are political questions for the politicians and pundits to debate; a debate which will have little, if any, effect on the law.  Miranda is a constitutional right, and the constitution applies to everyone within the borders of the United States.  Without a doubt, American citizens arrested in the United States are entitled to the same rights regardless of the crime of which they are accused.  As the law currently stands, documented and undocumented non-citizens arrested in the United States are also entitled to the same right Miranda rights as citizens.

Those who are frequent readers of this blog will know that the answers to the questions posed in Miranda Overseas will not be based on a political analysis.  Indeed, while a definitive answer on this issue would upset one side of the aisle, it could also shift the winds to help that side of the aisle on the related issue of military tribunals.  [Because of the significant lack of history on which to base my analysis, I do not take an opinion on whether Miranda could apply in the military tribunals.]

Rather, the question of Miranda Overseas is a metaphor for how far the the constitution, and the domestic case-law analyzing those constitutional rights like Miranda, follow us when we travel abroad, or when our government decides to charge a non-citizen captured overseas with a crime in American civilian courts.  While  the analysis of these issues will focus primarily on terrorism and drug cases, these issues are far from limited to these two issues.  As Supreme Court Justice Felix Frankfurter noted, "the safeguards of liberty have frequently been forged in controversies involving not very nice people."

Habeas and [the tort of] False Imprisonment

I was a little alarmed when a friend showed me an article which explained how in the aftermath of Hurricane Katrina, prisoners charged with misdemeanor offenses were incarcerated for over a year "doing 'Katrina time'" because "Governor Blanco effectively suspended habeas corpus ... for six months." [link to article]. The US Constitution of course reads: "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Without going into the specifics of whether the Governor actually tried to suspend habeas, it is first worth noting that no state actor [state supreme court, governor, legislator, police officer, etc] can violate your federal rights like habeas corpus, due process, speedy trial, etc.  They may try, but you are always free to file a habeas petition in federal court; the federal constitution trumps pretty much everything.

Again, without investigating the veracity of the allegation, let's say you were arrested and it took six months before you were released without charge, or you were held for a year for a charge that had a maximum penalty of one month.  This sounds like unquestionable unjust imprisonment, which could have been challenged with a habeas petition.  But let's say you didn't challenge it while you were imprisoned - you didn't have a lawyer, your lawyer was overworked and didn't think of habeas, or your lawyer mistakenly believed habeas could be overruled by a governor.  You are not out of luck - you are still entitled to sue for damages under the tort of "False Imprisonment."

As I continue to research habeas corpus issues, I am struck by the similarity of a habeas petition [trying to get out of jail because of unjust imprisonment] and the tort of False Imprisonment [suing for damages because of your unjust imprisonment].  But the beauty of the False Imprisonment tort is that, unlike with habeas, you can sue months and possibly years later, depending upon the statute of limitations.  I doubt there have been many class action suits alleging false imprisonment in the past, but if the allegations are true, there could be a big one coming in Louisiana.

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Disclaimer - I would like to remind anyone reading this that presently I am law student and not a lawyer.  While I may write about issues I find interesting, I cannot dispense legal advise.  That said, in addition to the tort of false imprisonment, your attorney would be wise to also consider 42 U.S.C. § 1983 - Civil Action for Deprivation of Rights [link].

Swine Flu - An Alternate Narrative

You would have to be living under a rock not to have heard about the H1N1-A or "Swine Flu," it's been heavily covered on every news outlet since it emerged. This latest flu is the latest example of how sensational American news has become, especially on international issues. But before I get to the Swine Flu, I’d like to mention a slightly older story that I find is a relevant back-story to the current debate.

Starting around 2006, a new national debate began on illegal immigration began, and throughout it all a few radical themes emerged. These themes were based on much older racial stereotypes, but in this case they were coated in a loose venire based on legal status. One of these themes emerged which is quite relevant to today’s topic - that Mexican illegal aliens are spreading disease into the United States.

Here we are today with a disease which seems to have begun in Mexico, which has spread into America. As you would imagine the anti-immigrant radicals are, as a friend put it, frothing at the mouth. This is because this international crisis conforms to the previous narrative, that Mexicans are bringing disease into America. But extremists aside, a slightly milder version of this narrative is still prevalent across the media – the Mexican people made a dangerous new flu and gave it to us.

It is important to remember that it has not been proven that H1N1-A came from Mexico, just that the first confirmed case is from Mexico, and an unexpectedly high majority of the deaths have been in Mexico as well.

I don’t pretend to be an expert on the flu, but I do watch international news very closely, and I am disturbed how one very important element of this story has escaped the attention of the vast majority of American mass media: since January, Mexico City has been under severe water shortages. For more than three months, Mexico City – the largest city in the world – has essentially been having rolling blackouts with its water supply.

“In some parts of the capital [Mexico City] washing hands has become a luxury. In recent months, some neighborhoods - all of them poor - have been without water service for two weeks at a time.” (NPR)

After quite a bit of searching online, I have been able to find no American news outlet other than NPR who has even related extreme water shortages in the world’s largest city to the outbreak of the new flu. Lack of water is a natural correlation, aren't you supposed to wash your hands and drink plenty of fluids? Regardless, now that the connection has been made, let me put forward an alternate narrative.

This flu season, a slightly new version of the flu virus emerges somewhere in the world. This flu has the exact same mortality rate as the standard seasonal flu, and so it doesn’t attract any attention . . . until people in Mexico City with the flu begin dying. Someone decides to do a genetic analysis of what what’s causing the illness and to his or her surprise, it turns out to be a new type of flu. Cautious governments around the world quickly react, fearing a 1918 style pandemic. The flu spreads like a pandemic around the world, but as it turns out this new version of flu is essentially exactly as dangerous as the normal flu. As world governments breathe a collective sigh of relief, the story begins to subside, all the while ignoring the true story. The Swine Flu panic began because the Mexican Government can’t provide for its citizens; the Mexican government - not the Mexican people - is at fault. While the Swine Flu crisis may have been resolved, the underlying problem remains – the Mexican people are dying because they don’t have access to clean water. Perhaps this is one of the reasons why they're trying to emigrate to America.

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Update:
Laurie Garrett, a Pulitzer prize winning author on pandemics, made a comment that industrial pig farms in the United States are a more likely source for the origin of the swine flu.  (Video clip; after minute 4). "So take that Lou Dobbs."

Why torture should not be a partisan debate

As I mentioned in my previous post comparing the foreign policies of Bush (43) to Truman and Obama to Nixon, the two parties don’t have as consistent a position on policies as the pundits would have you believe ... which is one of the main reasons why I'm an independent. Regardless, today's case in point – torture. Did you know that it was Ronald Reagan who signed the UN Convention Against Torture Treaty? (US State Department) That's the law that outlaws "cruel, inhumane or degrading treatment". And yet all of the defenders of America’s policy of torture are of Reagan’s party - the party that still considers Ronald Reagan it's greatest hero.

Don't get me wrong, I’m not naïve; the reason that right-wing pundits are defending this torture is because September 11 and its aftermath happened during a Republican administration. Does anyone really believe that the same pundits would be defending the torture policy if it were done during a Democratic administration?

Herein lies my point. It makes perfect sense that the Republicans Richard Cheney, Jay Bybee and John Yoo are defending the policy of torture – they were the enablers of that torture. They are also members of a previous Administration whose “approval rating is the lowest final rating for an outgoing president since Gallup began asking about presidential approval more than 70 years ago.” (Gallup - CBS News) But this does not mean that the debate needs to be a partisan one. During the 2008 Republican National Convention, there was quite a bit of buzz around how President Bush didn’t attend in person and how no one there would mention him by name. If it was alright for Republicans distancing themselves from an unpopular president, there is no reason why Republicans cannot distance themselves from an unethical policy of that president, which happened to also have been condemned by the great Republican hero Ronald Reagan.

If that argument doesn’t convince you, try looking at it this way. One of the criticisms of the originally released torture memos was that the conclusions could effect American citizens suspected of terrorism. Currently, there is a Democratic administration which says that it is against these methods. What if that wasn’t the case – and what if a right wing group threatened a terrorist attack or was merely suspected of links to terrorism?

Republicans – for whatever reason, do yourselves and the country a favor and do the right thing. Denounce the use of torture; it’s what Reagan would have done.

Never Again

A few years ago, I participated in the Florida State University Holocaust Institute for Educators. Of course there were the standard pictures and films of the atrocities, but the true treasure of the event was that we were able to listen to and meet with several holocaust survivors. I bring this up because each time I try to sit down and write about the current Debate on Torture, I can’t stop thinking about something that one of the holocaust survivors said. Someone asked what I thought was an innocuous question at the time, but I vividly remember her answer. She was asked why she kept coming to these lectures and she answered: “So that I can put a human face on it, and do my part to make sure it never happens again.”

It is time for the United States to come to grips with the fact that we tortured. We have to accept what this truly means – we can no longer claim to the white knight on the world stage. With waterboarding alone we have stooped to the likes of the Spanish Inquisition, the Khmer Rouge, and the Gestapo. Just as with the Holocaust there will always be deniers, but in the end we need to expose the full horror of what was done in order to embarrass the population into understanding that torture is not acceptable and dissuade possible enablers in the future. Investigating, exposing and denouncing what happened can we begin to regain the trust of our allies, and in order to make sure this doesn't happen again.

There are quite a few things I would like to address on this topic; I will continue to write about this issue in the coming days. I invite everyone to join the discussion in the days and weeks to come.

MLK and International Justice

This article comes from IRWatch Senior Correspondent, Janelle F.

Today the US remembers and celebrates Dr. Martin Luther King Jr., a man known for his profound influence on the Civil Rights Movement and its intersections with American social politics. This is also a fitting time to recall Dr. King's activism in the realm of US foreign policy and world politics, specifically in his reactions to the Vietnam War. He saw the war in Vietnam as a symptom of a greater disease, one in which people's rights were denied and their welfare jeopardized – the same disease causing the ugly symptom of social injustice in the US.

On April 4, 1967, Dr. King gave a speech to Clergy and Laymen Concerned About Vietnam at Riverside Church in New York City (the full text of the speech can be found here). He called for an end to the violence in Vietnam, but also for more than that. He called for sympathies that crossed racial, political, and national boundaries – for all people to unite in their common humanity, and allow that commonality to be the driving force in relations among nations and people.

"Beyond the calling of race or nation or creed is this vocation of sonship and brotherhood, and because I believe that the Father is deeply concerned especially for his suffering and helpless and outcast children, I come tonight to speak for them.

"This I believe to be the privilege and the burden of all of us who deem ourselves bound by allegiances and loyalties which are broader and deeper than nationalism and which go beyond our nation's self-defined goals and positions. We are called to speak for the weak, for the voiceless, for the victims of our nation and for those it calls enemy, for no document from human hands can make these humans any less our brothers.
…

"Here is the true meaning and value of compassion and non-violence when it helps us to see the enemy's point of view, to hear his questions, to know his assessment of ourselves. For from his view we may indeed see the basic weaknesses of our own condition, and if we are mature we may learn and grow and profit from the wisdom of the brothers who are called the opposition."

Through mutual respect and compassion, Dr. King believed we could achieve a greater peace and find mutual benefit. However, he also had a rather sentient vision of the alternative:

"There is something seductively tempting about stopping there and sending us all off on what in some circles has become a popular crusade against the war in Vietnam. I say we must enter that struggle, but I wish to go on now to say something even more disturbing. The war in Vietnam is but a symptom of a far deeper malady within the American spirit. And if we ignore this sobering reality we will find ourselves organizing Clergy and Laymen Concerned with committees for the next generation. They will be concerned about Guatemala and Peru. They will be concerned about Thailand and Cambodia. They will be concerned about Mozambique and South Africa. We will be marching for these and a dozen other names and attending rallies without end unless there is a significant and profound change in American life and policy."

Perhaps the best way to honor the legacy of Dr. King is not simply to rejoice in the great strides that have already been taken, but to continue to push forward toward the realization of his vision of true justice, equality, and peace.

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Source
The Martin Luther King, Jr., Research and Education Institute

"Tribalism" and the News from Kenya

I have been mulling over the current violence in Kenya since the New Year, trying to congeal my feelings into coherent thought. I had previously heard that the Kenyan electoral system was revered as being one of the best in Africa, and of course this violence is a tragedy. Three hundred people have died in rioting, many burned to death seeking sanctuary within a church. From what I understand, the violence was sparked by a close election, the confusion of the news media being shut down during the election, the unilateral declaration of victory by the incumbent and the statement from the election chairperson saying that he could not say who had actually won.

However I believe one of the biggest problems with this issue is its coverage in the news. I not a person who comments on the political correctness of words, however I do have a problem with inaccurate and misleading terminology. In particular, I am referring to the words tribal and tribalism. A quick scanning of headlines on Kenya include "Tribalism Isn't on the Ballot, But in Kenya It's Key Issue" (- Washington Post), "Tribalism's latest stalking ground" (- National Post) and "Old scores settled in Kenya's tribal war" (- Daily Telegraph).

So what's the problem here? The word "tribalism" incorrectly simplifies a complex situation, worse yet it is a slur. It conjures up images of nomads, of pre-industrial society, and of irresolvable blood rivalries. Thus the use of the word tribalism is at best inaccurate, and at worst bigoted. Is it too much to ask for accuracy and dare I say it a little nuance in our news? The spark was a close election and confusion, the fuel was political opportunists using existing racial mistrust as tool to get themselves more power in the chaos.

Additional Source:
Diane Rehm Show: January 3rd, 2007 (Listen Online: Real Media, Windows Media)

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Addendum:
I found this BBC article after writing my editorial. I thought I would add it because it comes to many of the same conclusions and goes into more depth on the details.

"Tribal violence spirals in Kenya," screams the front page banner in the International Herald Tribune. "Kenya plunges into interethnic violence," says Le Monde.

But headlines can be misleading.

It is certainly true that the post-electoral violence in Kenya has taken on a tribal character.

Members of the incumbent (and controversially re-installed) President Mwai Kibaki's Kikuyu tribe have been pitted against other smaller tribes.

But that is only part of the story.

A more complete headline might be: "Tribal differences in Kenya, normally accepted peacefully, are exploited by politicians hungry for power who can manipulate poverty-stricken population. ..." - BBC Africa News