Someone named “Jonathan” wrote in and asked: “So I’m just curious to know whether you would extend miranda rights to foreign terrorists operating on American soil? Why should an American who joins say Al Qaeda be entitled to a trial or a lawyer or any other right under our Constitution?”***(note below)
My answer to these questions [and the pathetic Senate debate excerpted here from the December 7, 2011 Daily Show with Jon Steward (
)] is that, contrary to current civil rights practice in the United States, governmentally imposed categories and mandatory categorization of people NEVER promotes equality but ALWAYS tends to support and advance both tyranny and real inequality. Nobody said it better than Rand Paul: “Detaining citizens without a trial is not American.”
By contrast, voluntary categorization, classification, and all assertions of identity originating from the people are among the surest guarantors and symptoms of freedom and genuine equality. In fact, I would submit that the voluntary and intentional creation and maintenance of identity is one of the Great Traditions of the United States of America which has defined some of the greatest and most distinctive events in the history of this Continent, from the settlement of the Pilgrim Nonconformist Separatists in New England in the 17th Century through the “Great Awakening” of the 18th Century, the Mormon emigration Westward (and many smaller “separate community, separate lifeway” experiments) in the 19th Century (including the Amish), right up until the Cultural upheaval of the 1960s, when “Hippies” and “Flower Children” sought to give a new meaning to Freedom in America. The decision to maintain cultural separateness has historically been protected by the United States Supreme Court in the greatest of its “substantive due process” decisions (e.g. Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) and Wisconsin v. Yoder, 406 U.S. 205, 232—233 (1972)).**
I would go so far as to maintain that involuntarily classifying people or sorting them into “favored” and “disfavored” groups as a matter of law without trial always leads to violations of due process. No movies or other literature ever illustrated this inherent injustice in the prejudicial and discriminatory processes of classification and labeling people one way or another than V-for-Vendetta in 2005 and Paul Verhoeven’s Black Book in 2006.
I would also say that the only real PURPOSES people EVER have in classifying their fellow man (and woman) into involuntary groups is to deny them due process, and that this is simply intolerable under the American Constitution.
Note that the Bill of Rights contains no categories of persons, but only restrictions on the power of government: absolutely and unqualifiedly stated. Rather, Amendments I, II, IV, IX, and X refer simply to “the people.” Amendment V refers to “no person” and “any person”, since criminal prosecutions are almost always, by definition, brought on a one-by-one individual basis. Even Nazi Germany, for example, never indicted “the Jews”, nor, during the 1950s, were there ever prosecutions against “the Communists”. Due process of law simply does not allow for categorical indictments.
Finally, Amendment VI refers only to “the accused”, again an individual classification. (Despite the customary usage of the masculine gender throughout the bill of rights when referring to individuals, no one has ever suggested that the framers intended these rights only to apply to men: it was the grammatical economy of the time not to say “he and she” or “his and hers” or “him and her” as it is sometimes thought more acceptable to do now.)
So these are the major reasons why, in response to Jonathan’s question, I believe that “Miranda rights” (i.e. the full inventory of rights Fifth and Sixth Amendment rights) should be extended to all “foreign terrorists operating on American soil.” To do otherwise would be to “prejudge” both who is foreign and who is a terrorist, and would make both words “foreign” and “terrorists” into prejudicial, disfavored categories exactly analogous to “Negro” under Jim Crow in the South, “Jew” in Nazi Germany, and “Bourgeois” or “Capitalist” in Stalinist Russia.
What the 1996 AEDPA, the 2001 PATRIOT Act, and the Senate in passing S.B. 1867 have done, though, is actually MUCH worse than MERELY “discriminating against foreigners and terrorists” and in fact, much worse than “merely discriminating against, Blacks or Jews or even (to give two give two examples of a super-irrationally feared and overused but extremely vague pair of categories in modern law) “Sex Offender” and “Illegal Immigrant.” No, the Category of “Terrorist” alone is “void for vagueness” as a matter of law. See Papachrisou v. Jacksonville, 405 U.S. 156, 169-170 (1972), and Kolender v. Lawson (Kolender v Lawson, 461 U.S. 352 (1982), attached here in adobe.pdf):
. . . “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983).
(On the whole, the text of Papachristou v. City of Jacksonville is more amusing for its analysis of how the distinction between “idle rich” and “vagrant” under the City of Jacksonville, Florida’s “Vagrancy” ordinance blurred into meaninglessness….Papachristou v City of Jacksonville 405 US 156 92 SCt 839 02-24-1972). ”Terrorism” as a status crime under S.B. 1867 or category of criminal conduct is void for all the same reasons as was “vagrancy.”
What the Senate has done in S.B. 1867 is worse than “mere discrimination” against any of those categorical groups because in each case (Black, Jew, Sex Offender, Illegal Immigrant) there is at least a fairly narrow and objectively determinable set of traits or characteristics which define membership in the group. There may be ambiguity at the edges, people of mixed race and ethnicity, “sex offenders” convicted of “statutory rape” where the girl lied about her age in an objectively credible way, cases of “illegal immigration” where family hardship brought or kept people together for mutual support in violation of immigration laws, but on the whole, Blacks, Jews, Illegal Immigrants, and Sex Offenders all know who they are, and they can either “lie low” or decide to leave the country if they are able.
What is so totally monstrous about the category of “terrorist” in particular and “foreigner operating on American soil” is that theses terms are simultaneously vague, overbroad and subject to arbitrary and capricious application to the degree that even racial categories and categories based on convictions for violation of laws are not. And in the context of modern America, merely calling someone a terrorist MAKES them a terrorist, especially (but not only) when it is a member of the government making the accusation. To allow denial of Fifth and Sixth Amendment rights to individuals accused of terrorism is simply to allow the government to deny these rights to anyone it wants, whenever it wants, for any reason it wants. We now have a “Government of the Dictators, by the Dictators, and For the Dictators” (as Lincoln’s Gettysburg Address should honestly and probably have been written). The dictatorial decision about who is a terrorist is left open—WIDE OPEN. The Office of the Attorney General of the State of Texas (Greg Abbott and James Carlton Todd) have been calling the author of this blog a “dangerous paper terrorist” since 2005. (Yes, I admit it, I have occasionally thrown paper airplanes at government buildings in protest against policies with which I disagree, OK? So I guess that means I’m off to Guantanamo Bay? or the Domestic Equivalent? In fact, when arrested by Live Oak at the edge of the Suwannee River on the order of Houston Federal Judge Lynn N. Hughes in August 2006, they raised the prospect of Guantanamo Bay for me in Jacksonville, only half joking…at most half….or maybe not at all I’m still not sure, but here I am in West L.A./Santa Monica). It is not trivial at all. They have been throwing around these terms like “paper terrorist” ever since 9/11, and the purpose is, frankly, to create an atmosphere of terror and prejudice against the people so labelled. After that experience, I just “went with it”. But even in 2005, there was another disbarred attorney (Zena D. Crenshaw NJCDLP “National Judicial Conduct & Disability Project) who came in from Indiana to help Francis Wayne Williams-Montenegro with my family law case in 2005. She tried to show that the Attorney General was trying to prejudice the Court against me (it was difficult to make the Williamson County 395th Judicial District any more prejudiced against me than it was) by calling me “the most dangerous paper terrorist” in Texas, but it didn’t go anywhere. Zena rightly predicted that they were trying to sweep all Judicial Reform activists into the category of “terrorists.” In fact, Judicial Reform, Anti-Income Tax/IRS Reform, Prison Reform, Anti-Big Oil Activists, we’re ALL terrorists now. The FBI has guidelines and we “fit” even before S.B. 1867 became law. I said to Zena in 2004-5 and I say now that to be accused of anything so preposterous is a “red badge of courage” and I wore it proudly (still do in fact), despite the fact that my saying so on videotape resulted in my getting arrested AGAIN in December 2007 in Mexico City and brought to Los Angeles (this time on the order of Judge Janis Graham Jack of Corpus Christi, in the same Southern District of Texas in which Judge Lynn N. Hughes sits, and which George H. W. Bush [Bush 41st] calls “home”).
The way “Jonathan’s” questions above are written actually illustrated just how bad S.B. 1867 is: After asking whether I would “extend Miranda Rights to foreign terrorists operation on American soil” (I submit that such rights have existed ever since the adoption of the Bill of Rights and the problem is not “extending” such rights under the Fifth and Sixth Amendments, but in taking them away), “Jonathan” then asks: “Why should an American who joins say “Al Qaeda” be entitled to a trial or lawyer or any other right under our Constitution?”
This question is probably the scariest of all, if serious and not merely rhetorical. My answer is simple: BECAUSE AN AMERICAN WHO JOINS AL QAEDA IS STILL AN AMERICAN, THAT’S WHY. But Again, to Repeat, and this is SO IMPORTANT: the Bill of Rights do not discriminate between Citizens and Non-Citizens, Americans and Non-Americans, just “people” and “persons” (so the only categorical distinctions made implicitly, if any, would be those between “people” or “persons” and animals [sorry, PETA][or plants I guess---wheat plants have any Constitutional rights before being eaten...even for arbitrary and capricious purposes as being ground into flour and made into extremely unhealthy and fattening cakes or cookies....]) .
But then that does wrap up this little exercise about why S.B. 1867 is such a very bad law: Americans can be characterized as “terrorists” and reduced to ashes by such categorization. And it could be that “Jonathan” has more confidence in the meaning of these terms than I do. I happen to believe that “Al Qaeda” was basically created and established, fostered, aided, and abetted, by the Bush-Reagan administration and set loose to create “domestic terrorism” to justify the very repression of civil liberties which have taken place since the Fall of the Berlin Wall in 1989-90 and the consequent evaporation of the Cold War as a reason for suppressing freedom and the Bill of Rights. So I think “Al Qaeda” is a government made fraud, that 9/11 was a U.S. government-sponsored “false flag” attack, and that Oklahoma City MAY have been a government-sponsored incident of false terrorism. (Please view this brilliant 5 minute summary, text also copied below at Note*:
In support of these hypotheses of mine, I can only point to patterns of history: from 1963-1972, from John F. Kennedy through George Corley Wallace, a series of public assassinations by public shootings of “troublesome” non-conformist politicians took place in a waive of “lone gunmen” with no precedent in American History, and no tradition that survived. The failed attacks on Ford and Reagan were just that, failures, and were easily traceable either to Squeaky Fromm/ Manson or John Hinkley personal and family psychological problems.
It is hard to believe that the generation that came of age during the decade 1963-1972 simply bred a series of “lone gunmen” who acted without obvious motive (but all happened to oppose, directly or indirectly, the policies and power of Lyndon Baines Johnson, even though John F. Kennedy, Robert F. Kennedy, Martin Luther King, Jr., and George C. Wallace were all at least nominally allies or at least in the same [Democratic] Party at one time or another, though Wallace ran Third-Party [American Independent] in 1968 and Malcolm X, though he hated all Democrats “categorically” as “Dixiecrats” was partially allied with Johnson on the question of Civil Rights).
It is equally hard to believe that another Decade long episode, namely the series of incidents of Domestic “Terrorism” or at least confrontation between Federal and Private parties that the Government sought to characterize somehow as “terroristic” from Ruby Ridge in 1992-9/11/2001, was merely a historical accident and not planned. ALL the major terrorist acts since 9/11 have occurred in Europe….THAT is the legacy of 2001-2011. Every decade has a different set of problems, with no overlap at all between the “Assassination” decade and the “Terrorism” Decade (unless you count the early 70s epidemic of hijacking which led to early restrictions on air-travel as partly overlapping with the decade of assassination). No, it seems that the Government picks its crisis formula based on what it wants to achieve and then “stages” criminal acts and history accordingly. So, Jonathan, whoever you are, does this answer your question? Do you really want to live in a country where they can decide, tomorrow, that YOU are a terrorist and lock you up forever?
****I know only a few Jonathans… I hope that “Jonathan” who is the author of these questions is posing them only for rhetorical purposes to test my commitment to moral consistency and philosophical coherence. Because, if the author of these questions is serious, and if he reflects widespread opinion in America, then…. I’m even more depressed about the passage of Senate Bill 1867 than I was before. I can only hope this Jonathan is Dr. Jonathan Harris Levy (Brimstone & Co.)(
), formerly attorney for noted Orange County Dentist Orly Taitz and (the one and only) other William Howard Taft Law School graduate I’ve ever encountered, because that would just confirm my suspicion that Orly supports the 93 bad guys who voted for this bill…. If it’s anyone of any higher level of academic achievement in law than the William Howard Taft Law School involved in presenting these questions, well that’s just demoralizing….
**If we desire homogeneity in this Country, we are well on the way to a “shake and bake” society of people no more different than one box of hamburger helper is from another. I do not personally desire such homogeneity, but I think it is best left to the people to make voluntary associations and define local color and establish meaningful cultural diversity by devolving power downward rather than concentrating it upward.
Everything you ever wanted to know about the 9/11 conspiracy theory in under 5 minutes.
TRANSCRIPT: On the morning of September 11, 2001, 19 men armed with boxcutters directed by a man on dialysis in a cave fortress halfway around the world using a satellite phone and a laptop directed the most sophisticated penetration of the most heavily-defended airspace in the world, overpowering the passengers and the military combat-trained pilots on 4 commercial aircraft before flying those planes wildly off course for over an hour without being molested by a single fighter interceptor.
These 19 hijackers, devout religious fundamentalists who liked to drink alcohol, snort cocaine, and live with pink-haired strippers, managed to knock down 3 buildings with 2 planes in New York, while in Washington a pilot who couldn’t handle a single engine Cessna was able to fly a 757 in an 8,000 foot descending 270 degree corskscrew turn to come exactly level with the ground, hitting the Pentagon in the budget analyst office where DoD staffers were working on the mystery of the 2.3 trillion dollars that Defense Secretary Donald Rumsfeld had announced “missing” from the Pentagon’s coffers in a press conference the day before, on September 10, 2001.
Luckily, the news anchors knew who did it within minutes, the pundits knew within hours, the Administration knew within the day, and the evidenceliterally fell into the FBI’s lap. But for some reason a bunch of crazy conspiracy theorists demanded an investigation into the greatest attack on American soil in history.
The investigation was delayed, underfunded, set up to fail, a conflict of interest and a cover up from start to finish. It was based on testimonyextracted through torture, the records of which were destroyed. It failed to mention the existence of WTC7, Able Danger, Ptech, Sibel Edmonds, OBL and the CIA, and the drills of hijacked aircraft being flown into buildings that were being simulated at the precise same time that those events were actually happening. It was lied to by the Pentagon, the CIA, the Bush Administration and as for Bush and Cheney…well, no one knows what they told it because they testified in secret, off the record, not under oath and behind closed doors. It didn’t bother to look at who funded the attacks because that question is of “little practical significance“. Still, the 9/11 Commission did brilliantly, answering all of the questions the public had (except most of the victims’ family members’ questions) and pinned blame on all the people responsible (although no one so much as lost their job), determining the attacks were “a failure of imagination” because “I don’t think anyone could envision flying airplanes into buildings ” except the Pentagon and FEMA and NORAD and the NRO.
The DIA destroyed 2.5 TB of data on Able Danger, but that’s OK because it probably wasn’t important.
The SEC destroyed their records on the investigation into the insider trading before the attacks, but that’s OK because destroying the records of the largest investigation in SEC history is just part of routine record keeping.
This man never existed, nor is anything he had to say worthy of your attention, and if you say otherwise you are a paranoid conspiracy theorist and deserve to be shunned by all of humanity. Likewise him, him, him, and her. (and her and her and him).
Osama Bin Laden lived in a cave fortress in the hills of Afghanistan, but somehow got away. Then he was hiding out in Tora Bora but somehow got away. Then he lived in Abottabad for years, taunting the most comprehensive intelligence dragnet employing the most sophisticated technology in the history of the world for 10 years, releasing video after video with complete impunity (and getting younger and younger as he did so), before finally being found in a daring SEAL team raid which wasn’t recorded on video, in which he didn’t resist or use his wife as a human shield, and in which these crack special forces operatives panicked and killed this unarmed man, supposedly the best source of intelligence about those dastardly terrorists on the planet. Then they dumped his body in the ocean before telling anyone about it. Then a couple dozen of that team’s members died in a helicopter crash in Afghanistan.
If you have any questions about this story…you are a batshit, paranoid, tinfoil, dog-abusing baby-hater and will be reviled by everyone. If you love your country and/or freedom, happiness, rainbows, rock and roll, puppy dogs, apple pie and your grandma, you will never ever express doubts about any part of this story to anyone. Ever.
If you would like to help the fight for “corny old values” like Truth, Justice, and the American Way, for Family, Home, and Freedom, and to add one Senator for the Bill of Rights and against Indefinite Detention, against the PATRIOT ACT, and against the use of United States Troops in this Country against its own citizens, please support Charles Edward Lincoln, III, for U.S. Senator from California. We are fighting one of the most entrenched establishment seats in Congress—Dianne Feinstein who tried to make cosmetic changes in S.B. 1867 to hide and disguise its truly oppressive nature (and to claim she had “done the best she could”, perhaps?)—and we ask you to send your check or money order to Lincoln-for-Senate 2012 to Charles Edward Lincoln, III, 952 Gayley Avenue, #143, Los Angeles, California 90024. Call 310-773-6023 for more information.