09:45 am
McCain, Palin, Boumediene, and Miranda
There’s a line from Sarah Palin’s acceptance speech that has rankled quite a few progressives and libertarians:
Al Qaeda terrorists still plot to inflict catastrophic harm on America … [Obama]’s worried that someone won’t read them their rights?
The partisan crowd responded, as you would expect, with an extended standing ovation — in fact, it was one of her most popular zingers in a speech filled with them.
Some have argued that Palin’s comment is merely an extension of McCain’s criticism of Boumediene v. Bush. In that case, the Supreme Court ruled 5-4 that those being held at Guantanamo have a right to habeas corpus under the Constitution and that the section of the Military Commissions Act that took away that right was unconstitutional. When Boumediene was announced, McCain called it “one of the worst decisions in the history of this country.”
Here, for example, is what Daniel Larison has to say:
[Palin's speech] is a fundamentally misleading framing of the issue of providing detainees with the ability to challenge the charges against them through a judicial process. . . .The question is whether the government has the right to seize someone, whether a foreigner or a U.S. citizen, accuse him of conspiring with terrorists, strip him of all legal protections and keep him detained indefinitely without access to due process. The McCain/Palin position is apparently that the government can and should do this.
Andrew Sullivan describess Palin’s one-liner as her position on Boumediene, quoting Larison’s comments in even greater detail. Daphne Eviatar calls Palin “Dick Cheney in a skirt,” arguing that
Palin’s speech last night suggests that in a McCain-Palin administration, the indefinite detention and abuse of foreigners without charges will remain an issue for at least another four years. And it could well be that if McCain has his way with the Supreme Court, we could easily end up with another decision as infamous as Korematsu.
Larison, Sullivan, and Eviatar have a point — it’s clear that the McCain campaign not only dislikes the Boumediene case but also sees it as an opportunity to hit Democrats for being soft on terrorism.
But the real target of Conservative attacks is not Boumediene. It’s Miranda v. Arizona, the 1966 Supreme Court ruling that a suspect in police custody has the right to consult with an attorney, as well as the right not to incriminate themselves. The Court also ruled that suspects must be made to understand their rights, and that police cannot interrogate a suspect without an attorney present unless the suspect has waived these rights.
Conservatives despise Miranda v. Arizona. They hate it more than any other Supreme Court ruling, with the possible exception of Roe v. Wade. They regard it as a leading example of judicial activism — which they define as the effort of certain judges (including Supreme Court justices) to create (”legislate”) law, rather than merely interpret it.
Since Nixon, conservatives have argued that judicial activists should be replaced by “strict constructionists,” who, as Wikipedia wryly notes, believe in “a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.”
Scalia, Thomas, Roberts, and Alito all are strict constructionists. Were a case challenging Miranda ever to come before the Court, they would favor overturning the original ruling. For example, in Dickerson v. United States (2000), Scalia, joined by Thomas, said
Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. . . .Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous.
Here’s what John McCain had to say about strict constructionism in his acceptance speech at the convention:
We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don’t legislate from the bench.
Much as was the case with Palin’s anti-habeas corpus line, McCain’s statement was greeted with thunderous applause.
I read McCain’s statement as an endorsement of the long-standing conservative practice of appointing strict constructionists to the Court (and to lower courts as well). Larison therefore is right in suggesting that, under a McCain Administration, we could end up with a strict constructionist-dominated Supreme Court capable of overturning Boumediene.
But that’s not really the point.
The real danger is that such a Court would gut Miranda and other key ruling on defendants’ rights, thus opening the door to arbitrary detentions in the United States.
John McCain has stated repeatedly that he would end the practice of torture and close Guantanamo. But such promises are meaningless if he also were to appoint Supreme Court justices who don’t believe that the Bill of Rights guarantees the right to silence, the right to legal representation, and the right not to incriminate oneself.
Were a strict constructionist-dominated Court to gut Miranda and other key rulings, Americans would live in a country were executive fiat had replaced the rule of law. Even if McCain were not to use such powers himself, it would only be a matter of time that a future President — say a President Palin, for example — would suspend fundamental rights in the name of national security.
And that, my friends, is the kind of change that we should never believe in.