Pundit vs Pundit: Invoking the public exception to Miranda warning may not be enough.

Thoughtful political debate is what Peach Pundit is all about and as hard as it may be to comprehend, Front Page Posters here disagree from time to time. Given the events of last week and the ongoing debate about how to deal with terror suspects captured here in the United States, we thought it would be beneficial to have such a debate here on the front page. The political combatants today are Yours Truly and George Chidi. Below is my offering. To see the opposing viewpoint click here. – Buzz

Even before the brothers Tsarnaev were apprehended Friday (one deceased, one in custody) the debate over what to do with them should they be captured alive was in full force. It’s not as easy question to answer, especially for Dzhokhar Tsarnaev, the younger brother captured late Friday, who is an American citizen.

I’ve come to the conclusion after listening to debate and reading numerous articles that invoking the public exception to the Miranda warning, as has been done, may not give us enough time to find out who else may be involved in the Boston Marathon Bombing plot. As Senator Chambliss points out, the public exception to Miranda is meant to be for a very short duration.

“Given what we know, and more importantly don’t know, about Dzhokhar Tsarnaev and his brother, this terrorist should be fully interrogated as an enemy combatant before any consideration is given to providing Miranda warnings. I am disappointed that it appears this administration is once again relying on Miranda’s public safety exception to gather intelligence which only allows at best a 48-hour waiting period that may expire since the suspect has been critically wounded.”

The Tsarnaev brother may be part of a terrorist “sleeper cell,” and may have been trained oversees by terrorist groups. Could another attack be imminent? We need to know now.

It’s clear the Tsarnaev’s had other bombs and I doubt those were for their own amusement. How and where did these two obtain the bomb making materials and the weapons in their possession? One appears to have been unemployed and the other is a college student. Where did they get the money for all this stuff, and what about that Saudi National injured at the scene? We need more than 48 hours to get these and other questions answered.

Treating Dzhokhar Tsarnaev as an enemy combatant while we get as many of these questions answered seems to be the proper course to take. Whether we want to admit it or not, we are at war with terrorist who use a radical strain of Islam to motivate their violent actions. Pretending this can be solved by law enforcement and our Courts exclusively is naive. Allowing this particular suspect to be questioned for a brief period of time and then turned over the U.S. Attorney and the Boston D.A. For criminal prosecution won’t violate his rights and may save many other lives.

94 comments

  1. James says:

    Buzz: this guy is an American citizen–for better or worse.

    If your conclusion is that this guy should be treated as an “enemy combatant” (which is not a category of persons identified in the Constitution) and denied his constitutional rights, I never want to see you argue ever again about drone strikes, Obamacare, gun control, or anything else you believe to violate the Constitution. Because what you’re suggesting is as unconstitutional as it gets.

    • Really? Hasn’t the Supreme Court ruled on this and said in certain cases a citizen can be held as an enemy combatant as long as he’s given due process?

      • James says:

        Hamdi v. Rumsfeld was limited on its face to the definition of “enemy combatant” as one who “was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” The case stands for the proposition that an “enemy combatant” as defined above who is also a U.S. citizen is entitled to due process.

        It does not stand for the proposition you assert — i.e., that we can name Tsarnaev an “enemy combatant” for the purposes of questioning him without a lawyer or otherwise depriving him of due process. I’m not a Scalia fan, but he got it right in Hamdi – you either suspend the right to habeas corpus, or you try Tsarnaev under normal criminal law.

      • Loren says:

        What would it even mean to be an “enemy combatant with due process”? A lack of appeal to due process (either under the Geneva convention or the US Constitution) tends to be one of the defining features of enemy combatant status.

        If you want to classify Tsarnaev as an enemy combatant, but still give him due process, then what are you actually suggesting he be denied? How, other than the label, are you suggesting he be treated differently than an ordinary domestic terrorist?

        • James says:

          That’s the fallacy: that if we simply call this guy an “enemy combatant” we don’t have to give him due process rights. There’s no authority for this position and it is unconstitutional.

          • mpierce says:

            NDAA 2012
            SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

            (a) IN GENERAL.-Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

            (b) COVERED PERSONS.-A covered person under this section is any person as follows:

            (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

            (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

            (c) DISPOSITION UNDER LAW OF WAR.-The disposition of a person under the law of war as described in subsection (a) may include the following:

            (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

            (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

            (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

            (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

            • James says:

              This statute doesn’t even apply because we’re not talking about al-Qaeda or the Taliban. Also, read the Hamdi decision — “indefinite detention for the purpose of interrogation is not authorized” under this statute.

              • mpierce says:

                “we’re not talking about al-Qaeda or the Taliban”

                which is why I bolded “associated forces”

                On Hamdi: “indefinite detention for the purpose of interrogation is not authorized” which followed “If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

                I’ve not heard anyone suggesting to hold Tsarnaev indefinitely for interrogation.

                • James says:

                  No one knows yet why this guy did it. So how can you suggest that this statute applies because he is “associated” with al-Qaeda or the Taliban? Are all criminal Muslims “associated” with these groups? Who makes that decision? This is precisely the problem with statutes that try to parse constitutional rights.

                  In any event–neither this statute nor Hamdi stands for the proposition that a U.S. citizen can be deemed a “enemy combatant” and, on that basis, forfeit his 5th amendment rights against self-incrimination. This is not the law.

                  • mpierce says:

                    How can he be incriminating himself if what he says isn’t used against him in a court of law?

                    • mpierce says:

                      I’m sure they have more info than I do but it seems to me fairly obvious that he has committed a belligerent act in aid of such enemy forces. As far as who makes that decision, I would guess the President. I think there should also be some judicial oversight.

            • c_murrayiii says:

              Also, important to quote the entire statute, not just the part that furthers a point. For instances, this section includes a provision:

              (e) A
              UTHORITIES
              .—Nothing in this section shall be construed
              to affect existing law or authorities relating to the detention of
              United States citizens, lawful resident aliens of the United States,
              or any other persons who are captured or arrested in the United
              States.

      • Rick Day says:

        SCOTUS settled the abortion question 40 years ago. If SCOTUS is your fall back expert on constitutional law, then why are you still pro-illegal abortion?

        Because, like many other conservatives and liberals, you seem to pick and choose which rights to trample and champion.

        Chambliss, et al’s position on this kowtows to the muslim hating base of the GOP. Wrapping feces in a flag does not make it any more palatable.

    • Lea Thrace says:

      Yeah. That statement scared me especially since it comes from someone who has spoken of their belief in the Constitution and what it stands for.

      This feels like a “let’s throw the rules out because they doesnt fit our needs move”, which is precisely what Republicans really dislike about Democrats. We have a Constitution and we have laws. If we dont follow them, who do we become?

        • James says:

          I completely agree, and am kind of shocked that a politician would make this statement. The statement that “Pretending this can be solved by law enforcement and our Courts exclusively is naive” seems to be tantamount to a statement that “the Constitution doesn’t work.” Like Lea says above, a really strange position coming from someone who repeatedly champions the Constitution.

    • I’m talking about the military and our intelligence agencies. Perhaps it’s semantics but I don’t consider them law enforcement agencies.

      In this particular case we need intelligence agencies involved to investigate ties to other known terrorist organizations.

  2. Three Jack says:

    http://web.law.duke.edu/publiclaw/supremecourtonline/commentary/hamvrum

    According to this ruling, we would have to first declare Boston, Massachusetts or the USA a ‘battlefield’ for the kid to be held as an enemy combatant.

    In my opinion, he managed to become a U.S. citizen on 9/11/12 so he should be afforded the same legal rights as a citizen. The attack while surely a big media event, resulted in fewer deaths than many SW Atlanta gun fights on a given weekend. Authorities can put together enough evidence to trace his path up to the bombing without violating his rights which could result in a judge throwing out all evidence against him and setting him free.

    • To be fair, it’s hard to imagine the case unraveling or a judge releasing someone even in extraordinary circumstances of rights being trampled on when you factor in the video, the carjacking, the gunfights, the extra explosions etc.

      The real question for Buzz and others is what kind of tactics they think are available to “enemy combatant” interrogators that might yield something that federal and state investigators couldn’t get from the suspect.

      If anything, a persuasive argument I’ve heard is that a criminal lawyer working in consultation with the suspect may be able to explain to him the severity of the charges he faces and why it’s in his best interest to start cooperating, yielding more for investigators than whatever Buzz imagines happens to enemy combatants. Remember, we’re not talking about an OBL side hand scooped up during a gun battle in the western pass.

      • Three Jack says:

        Chris,

        I see your point about it being seemingly impossible for this case to unravel so as the kid walks free. So I offer OJ as a quick example where it can and has happened and I’m sure there are many more that seemed ironclad.

        What will authorities gain by ignoring our laws that cannot be gained within the law? If we as a country ignore our basic legal proceedings, the ‘terrorists’ as it were have again achieved their goals.

        • I wasn’t aware that there was a Miranda element to OJ in addition to just general prosecutorial malpractice and excellent defense strategy. That said I think we’re basically on the same page here.

      • mpierce says:

        The difference is that federal and state investigators are working toward a conviction in a trial. Intelligence interrogators seek intel to prevent future attacks.

        • Lea Thrace says:

          I agree with this distinction. But arent CIA and other non LE agencies (as Buzz classified them) currently involved in the investigation anyway?

    • Rick Day says:

      not to mention the 50 killed in iraq that day by…

      yup… an IED.

      But we kinda missed that moment of silence for them today. After all we are more precious in the eyes of the Lord™

      I’ve got more guns than those two mass murders were using during the whole time. Notice the GOP does not focus on what killed the cop (an unregistered gun) but what maimed the most people (a ‘weapon of mass destruction).

      Perhaps Saddam was stockpiling pressure cookers, idk…

  3. drjay says:

    wasn’t mcveigh treated like a normal us citizen that was accused of committing a crime–i would presume this guy would get the same treatment, i guess i could see some leeway in those first hours, esp. if they thought another strike was eminent or some such, but we are a week out now, i would think that window has passed…

  4. Here’s some more context for my statement that fighting terrorism is more than just a law enforcement exercise: President Obama has taken steps to return us to the way things were before 9/11 whereby terrorism was treated as just another criminal act. I think this is a mistake. We need much more emphasis on intelligence efforts. We need to know what terrorists are up to and yet we’re cutting in half the number of FBI agents we’re putting into undercover work. That could cause problems in the future.

    For more see the second half of this episode of Coffee and Markets.

    • James says:

      Ah, somehow I knew that Obama would be blamed for something before all was said and done.

      I don’t understand your point. We need more emphasis on intelligence efforts to figure out what terrorists are doing. Fine. How does this justify not giving a U.S. citizen due process once they have been captured for terrorist activities?

      • I didnt “blame” Obama for anything. I criticized his policies.

        Once he’s read his rights an attorney shows up and Tsarnaev shuts up. You get no more information without cutting a deal and reducing the charges against him. The information the intelligence folks needs relates to other potential terrorists and plots that may be active – not to the prosecution of the crimes Tsarnaev is now charged with.

        • So you have a problem with hypothetically let’s say promising him an extra hour of television during his life sentence in exchange for his telling us what he knows?

          Is this really what it boils down to?

        • Rick Day says:

          Your running on a hypothetical, Buzz. There is no credible evidence he is part of anything other than a couple of pissed off brats. “May” and “Might” does not cute it as valid reasons for your position.

          There are no terrorists, there are only murderers with agendas. The terror part is what you feel, now. You are afraid that there may be more bombs. You are apologizing for exceptions to the constitution.

          You can’t have it both ways; either you firmly believe in our system of justice, or you believe that the system is too weak and neutral in this case to enact ‘real justice’.

          Have some faith, son!

  5. The other problem I see is the point I made in the post: since these guys had more bombs and might be part of a sleeper cell, are there other active plots? We need to know that information and soon.

    • Please be specific in answering this question:

      Assuming the worst case scenario to be true, that there are other active plots and participants, why would declaring him an enemy combatant yield that information when just asking him in the normal interrogative fashions not. According to a Washington Post article:

      “A special team of interrogators from the CIA, FBI and the military is expected to question the suspect.”

      So it appears the CIA is involved and cooperating with other branches of the government(s). So what would enemy combatant specification solve here? Please be specific.

      • Once he’s read his rights an attorney shows up Tsarnaev shuts up. You get no more information without cutting a deal and reducing the charges against him. The information the intelligence folks needs relates to other potential terrorists and plots that may be active – not to the prosecution of the crimes Tsarnaev is now charged with.

        • Do you have any reason to believe that this particular suspect or others in the past stopped talking when an attorney showed up? As in they were divulging the keys to the Al Queda universe until an attorney said hey shut up.

          • Noway says:

            Chris, an attorney willllll tell him to shut the hell up so that “anything he says” won’t be use against him in court proceedings.

            • Noway says:

              Then negociations will begin at that point as to whether his giving up info will ease his sentence or if they believe the case has been hypothetically bungled to the point where the case gets tossed.

    • Right because detaining someone while we find out what he knows about his terrorist buddies and perhaps even active plots automatically means I want to torture him.

        • James says:

          You’re going to hear crickets in response to this question. The whole reason we have Miranda rights and access to attorneys is to prevent the possibility of coerced testimony. So what other reason would there be to eliminate this due process? Coercion, perhaps?

          • You realize prior to charges being filed today Tsarnaev was not read his rights? Do you really think they were water-boarding him right there in the hospital?

            • James says:

              No. They weren’t questioning him at all until today, from what I’ve read. Miranda is only tied to “custodial interrogation.” So no need to read him his rights until they want to question him.

            • Patrick Mayer says:

              1. There are much more subtle forms of interrogation that can be preformed in hospitals that would register much worse than water boarding.

              2. The Miranda exception was created just for this situation. It will work well, and we don’t have to go down the slippery slope of someone being called an “enemy combatant” (which is almost always used to describe as a foreign soldier/terrorist fighting on foreign grounds) when they are on US soil and have been apprehended by someone other than an intelligence organization or the military during an op.

              3. The chances of getting primary intelligence from this situation died under a Mercedes driven by #2. Computer forensics, telephone records, and the rest of their digital footprint is going to open situations for HUMINT to be collected and processed.

              4. This kid is not a hardened terrorist. He went and hid in a landlocked boat after his brother was killed, not exactly best practices for SERE. Calling him a “combatant” is a stretch.

        • Once he’s read his rights an attorney shows up Tsarnaev shuts up. You get no more information without cutting a deal and reducing the charges against him.

          Reports were that he was communicating. Why not let him continue to communicate without having to offer anything in return? I doubt they’re torturing him right there in the hospital so perhaps someone has developed a rapport with him. Let them talk and see what else we can learn. Maybe we’ll shut down the rumored terror cell. Maybe we’ll prevent another attack.

          • James says:

            “Once he’s read his rights an attorney shows up Tsarnaev shuts up.” Two things wrong with this:

            1. It’s just not true. Ask any prosecutor or defense attorney — plenty of criminals make incriminating statements in the presence of their attorneys. Also, if this guy really participated in these bombings for religious reasons, he’s not going to stop talking about this just because his lawyer advises him it would be a bad idea.

            More importantly:

            2. WHO CARES. THIS IS A FUNDAMENTAL CONSTITUTIONAL RIGHT. Remember the Fifth Amendment’s prohibition against self-incrimination? He has that right.

          • Maybe offering him an hour a day of television time during his consecutive life sentences will yield the information as well. We’re not letting this guy out of jail this lifetime. Who cares if they bargain a bit to get valuable information. He has a right to remain silent and not further incriminate himself or his associates, if he even has associates. Those rights are valuable. That’s why you get to bargain, that’s why bargaining is a powerful tool for prosecutors and interrogators.

            If I get caught on camera running a red light, you better believe I want the right to not have to volunteer anything else I did in traffic that day that the authorities don’t already have evidence to convict me on. I bet you agree with that. It’s the same principle, not that hard to understand. Especially when you consider that I’m rumored to use the Waze app that lets me and my co-conspirators alert each other to the presence of the authorities so that we may elude them as we break the law by speeding etc.

            • Noway says:

              To heck with this back and forth discussion. Chris, what is the Waze Ap, that sounds like something I need!!

              • Crowdsourced GPS. My wife swears by it. I find it to sometimes try to send me on some pretty funky (and incorrect) routes to get around potential traffic spots – sometimes the medicine is worse than the ailment, but it’s a great idea and the more people that use it the better the data.

              • Ellynn says:

                Great App. More relayable then other traffic apps and Google maps traffic funtion. It takes user info on driving patterns (when the APP is on, you can turn it off) and user submitted real time info (like construction, hidden police, traffic jams). It can make routes for you or you can use it as you drive to either avoid or know about upcoming traffice.

  6. George Chidi says:

    OK. Whatever else is going on, Buzz has taken a side in an entirely hypothetical reasoning exercise. The suspect has been charged. Being able to hold an idea in your hand without it becoming you is a mark of a civilized mind.

    The “how could you?” stuff about Buzz making this argument? It’s a debate. We’re hashing out ideas here. It’s not personal.

  7. bowersville says:

    Rep. Peter King: I believe he should be treated as an enemy combatant for the purpose of interrogation. I put out a statement with Senator McCain, Senator Graham, Senator Ayotte. The reason for it is, there’s so many questions unanswered. There are so many potential links to terrorism here. Also, the battlefield is now in the United States. So, I believe he is an enemy combatant.

    Boston and the United States is not a battleground. If we follow this line of thinking we will all loose our Constitutional rights. My understanding is the enemy combatant status is invoked for the purpose of removing from the battlefield. To invoke enemy combat status, we declare our country a battlefield and all it implies despite arguments to the contrary. We also elevate the accused criminals to the status of jihadist in the eyes of jihadist around the world. A status they may not have achieved. We(Iraqi’s) tried Sadaam as a criminal and hung him by the neck until dead. Not as he desired, a firing squad which he viewed as some sort of dignity but the death of a common criminal.

  8. johnl says:

    They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

    -Benjamin Franklin

  9. mike beaudreau says:

    I have never posted on this site though I have been a reader for a very long time. What prompted me to write a note is the rather non-chalant attitude to the threat of terrorism that I feel is imminent here by some posters. I also happen to agree with Buzz. To compare the act, it seems, to getting pulled over for a traffic stop, running a red light, and other minor infractions is insulting at best. Perhaps I am jaded by personally being about 1.5 blocks away in Boston last week when the 1st of 2 bombs went off, but I really there is more to this whole issue.

    First off, These were not “spur of the moment” bad decisions, like rolling through a stop sign or driving 10 mph over the speed limit. For the love of Mary, these 2 people(and perhaps more) conspired and committed premeditated acts that killed 4, injured nearly 200(some with no limbs left) and left a community of hundreds of thousands devestated. The scale of destruction is what separates these criminals and the latest “shooting.” The scale of destruction is what makes me even think for a second that there are cases where extreme measures have to be taken.

    Secondly, the breadth and scope of the damage is only what we know about now. There is no telling how many more deaths and lives would have been ruined if we had not caught these 2 “people.” The ability and I would assert, necessity, to prevent further extreme action is a reason to consider more extreme interrogation techniques.

    Just some things to chew on….

    • Jackster says:

      I appreciate the warning of romanticizing, normalizing, or minimizing the actions of these two brothers.

      When you chide others for drawing comparisons which may not be valid, I think you also need to call their acts and the government’s acts what they are:

      Bombings… not extreme actions…
      Is Interrogation the same as questioning?
      Are all Extreme interrogation Techniques Torture?

      I would submit that given the stakes, a group of people (government, corporation, etc.) will do whatever it deems necessary to ensure its safety, regardless of legality.

      • James says:

        This is a cliche point, but it bears repeating: terrorists attack America because of what we stand for — our freedom from oppression, our Constitutional rights, and our due process. If a terrorist attack erodes those rights, then the terrorists win and America loses. It really is that simple.

        • Rick Day says:

          Hi James,

          Does it go like this:

          Yer Average Muslim wakes up one morning or watches some preacher on the YouTubes. Thinks, “By Allah, I hate freedom! I shall kill myself and Americans to show how much I hate freedom. I shall bring terror to their free country!”

          “Then they will no longer be free!”

          For real? In Buzz and your collective bubble, the terrorists have won. Come out of the corner. We have all moved on, with a collective finger flip at these common thugs.

          History proves you wrong. They simply want us and our oil business out of their country and lives.

          You don’t want them here; they don’t want you there either.

          It really can’t be more simple.

        • Jackster says:

          James, this comment is cliche, and doesn’t actually have any substance.

          The point I’m making here is that even if you designate them as an “enemy combatant”, or not… what you’re really doing is trying to figure out how to put more options on the table for your various resources, whether they be law enforcement, intelligence, or counter terrorism.

          My point that if the stakes are great enough, the entity’s will do whatever it can to protect itself. That may mean a special designation of “Enemy combatant”, it may mean they disappear, etc.

          Look at it this way – even if rules are broken, fudged, or “interpreted”, the damage at the time is done… whether that be torture, civil rights violations, or other punishment, the focus is on gathering intel now… What does it matter the charges they’re found guilty on, if they’re still locked up and “under review”?

    • seenbetrdayz says:

      I don’t know if I would describe my attitude as ‘nonchalant’. It’s more of a “we’ve been at this sh*t for a decade+ since 9/11 and it’s getting old having to go hide under the bed and see more freedoms flushed down the toilet in order to prevent terrorists from taking them away and OMG srsly, are they playing the same old broken records when it comes to fighting terrorism all over again?”

      Those who do not know their history are doomed to repeat it, and here we are, repeating it. It’s not a matter of being chalant or nonchalant, it’s just that this sh*t is getting old.

      For a new course of action in how we might prevent future terror attacks, see Rick Day’s post below.

      It seems that we would have tried it by now. For one, our politicians are always promising us energy independence. For two, they don’t hate us for our freedoms but because we occupy the Muslim world to get at the oil. Hmmmm. I see a great opportunity to kill two birds with one stone here.

      • seenbetrdayz says:

        or above, rather, Rick mentions it right above. They don’t hate us for our freedom. They hate us because our meddling in their affairs leads to a loss of theirs.

  10. bowersville says:

    Update from Pete Williams.

    NBC Nightly News ✔ @nbcnightlynews

    Bombing suspect tells investigators, in writing, brothers conceived attack on their own, motivated by religious fervor – @PeteWilliamsNBC
    8:15 PM – 22 Apr 2013

    NBC Nightly News ✔ @nbcnightlynews

    MORE: Bombing suspect tells investigators, in writing, brothers got instructions on how to make bombs from the Internet – @PeteWilliamsNBC

    Of course it’s early in the investigation and as the criminal suspect is presented with evidence, his statements could change. Missing is whether the were reports of other accomplices.

  11. George Chidi says:

    I think Buzz had the more difficult side in this debate. Never mind the law or the logic; public sentiment, particularly among libertarian-leaning Republicans, is starkly opposed to loosening the constraints on government.

    Were we to have switched positions, here’s the argument I would have made: designating the Boston bomber as an enemy combatant preserves the legal argument for the use of the power. Each time an opportunity emerges where it might be applied and the executive refrains from using it, the concept is pushed a little farther from the realm of legitimacy, and there are moments when its use will be clearly necessary and when questions about its propriety would be deeply damaging. Calling him an enemy combatant keeps the term in play.

    I might also argue that the legal doctrine has, still, yet to be thoroughly vetted in the courts, and that we might be better off by settling some of these arguments once and for all with a test case, for which the underlying evidence of guilt is great enough to withstand rejection of the enemy combatant doctrine at the U.S. Supreme Court. By designating the fellow an enemy combatant, Obama could settle the question of its legality and propriety once and for all with a call for expedited judicial review of the untested provisions.

    Fortunately for me, I had the other side of the coin on this one, because that’s the least-bulls–t argument I can think of.

  12. saltycracker says:

    The probability is that other people knew something was up.
    Add in the FBI and CIA that failed epically with 911 (book Triple Cross) and we can probably dial back before this issue and see that they failed again.
    Russian warning , no fly lists, wife, acquaintances, encounters, what red flags were out there ?

    • bowersville says:

      Wife(mom, dad), acquaintances and encounters may very well turn out the same as Columbine. Nutshell: At Columbine they all knew. The red flags were there but they didn’t register.

      Russian warning: That one is intriguing. We’ll probably never know what’s in that file unless it’s revealed by Congressional oversight but I’d fall out of my chair if “black hat” was over there spouting radicalized Islam looking for sponsors.

  13. smvaughn says:

    There’s little to add to this discussion, but there’s one point I don’t think has been mentioned. The penalty for interrogating him w/o reading him Miranda rights is that any statements he gives cannot be used against him at trial. If you don’t need his statements to convict him — which it seems like they do — then just don’t read them to him. There’s no need to resort to the contortionist exercise of trying to classify him as an “enemy combatant” when that’s clearly not appropriate. Hell, the statements you get from him can even be used in court against his “terrorist buddies” as Buzz is convinced exist.

    • smvaughn says:

      I meant to say, “which it seems like they don’t [need his statements to convict him],” in light of the fact that they have video of him dropping the bomb off.

  14. elfiii says:

    @ Patrick Mayer – “Calling him a “combatant” is a stretch.”

    Anybody willing to participate in the two way firing range exercise with scads of PoPo’s is a “combatant” in my book. 😉

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