LGBTQ v Religious Rights?: The 2015 Kurz Chair public event

As the Herbert Kurz Chair in Constitutional Rights at Brooklyn College, I have the opportunity to create public programming for the College community and general public about the possibilities and limits of using the U.S. Constitution to protect politically vulnerable minority groups.  In past years, I have taken on the topics of Stop and Frisk, school desegregation, and last year, immigration reform.  Consistent with past practice, I bring in an outside expert and also tap Brooklyn College's own talented faculty.  This year, I take on the issue of LGBTQ versus religious rights.

LGBTQ vs. Religious rights?

The media casts these rights as in opposition, but is this the only way these issues can be framed?

Having overcome anti-sodomy laws, overturned the military’s Don’t-Ask-Don’t-Tell policy, and achieved marriage equality, the LGBTQ movement is at a crossroads.  Despite the Supreme Court’s recent landmark ruling in Obergefell v Hodges (2015), the marriage equality case, sexual orientation as a category, unlike race, sex, and gender, has not been elevated to a protected class. The consequence is that LGBTQ citizens may still be open to discrimination in employment, housing, adoption, and other areas of public and private life.

At the same time, the United States has a long and proud history of respecting the free exercise of religion.  Are we as a nation prepared to force religious persons to act against their sincere and deeply held religious beliefs and conscience? How do we balance LGBTQ claims to equal treatment against those claiming religious freedom? Are these two sets of claims mutually exclusive?  Is there any way to reconcile them that would be fair or acceptable to both? 

WHO:  Helping us sort through these questions are one visitor and one of Brooklyn College's own.

Steve Sanders of the Indiana University's School of Law, a nationally recognized expert on constitutional law and the legal issues of same sex couples and their families, conflict of laws, federalism, and academic freedom.  He has also argued a case before the Supreme Court.

Paisley Currah, a political scientist and pioneer in the field ofsexuality and gender studies and founding co-editor of TSQ: Transgender Studies Quarterly.  His areas of expertise are in LGBT studies, queer legal theory, public policy, and political theory.  

WHEN:   Monday, October 26, 2015, from 11am -12:30PM  

WHERE:  Woody Tanger Auditorium, inside the Brooklyn College Library (Bldg #13 on the map)

2014 Herbert Kurz Chair Roundtable: The Politics of Immigration and Citizenship--Past as Prologue

As the Herbert Kurz Chair in Constituional Rights, each year I have the pleasure of putting together public programing around the theme of constitutional rights.  In 2012, we took on NYPD's controversial Stop and Frisk policy.  Last year, to commemorate the 60th anniversary of Brown v Board of Education, we tackled school desegregation.  This year, we investigate the politics of immigration, a subject that has been described as the "new third rail of American politics."

Individuals and groups as diverse as the NAACP, Mark Zuckerberg, Al Sharpton, MALDEF, SEIU, the Chamber of Commerce, and many others including leading CEOS in the Silicon Valley have loudly called for comprehensive immigration reform.  Zuckerberg has said that immigration is the civil rights issue of our time.  All feel that the system is profoundly broken and is harming individuals and families, and also puts U.S. businesses in an uncompetitive position.  In the summer of 2013, the U.S. Senate passed a comprehensive and bipartisan immigration bill.  The initial elation quickly evaporated when the House failed to follow suit and openly stymied the process.  The immigration reform effort was declared officially dead in the summer of 2014.  Was immigration reform always mission impossible?

To address that question and related ones, I am convening a round-table of prominent immigration scholars who study immigration in historical context.  Common to all the participants is that they believe why something happens in American politics is often explained by when it happens.  These scholars are adept at drawing insight from our immigrant past to explain our present. 

WHAT:      Round-table on the politics of immigration and citizenship

WHEN:     Thursday, October 16, 4:30-6pm, with informal reception to follow

WHERE:  CUNY Graduate Center,  365 Fifth Avenue (@ 34th St.), Sociology Lounge (Room 6112)

WHO:  The participants are prominent immigration history, law, and public policy scholars.

Cybelle Fox, Assistant Professor of Sociology, UC Berkely, author of  Three Worlds of Relief that won 6 book awards.

Rebecca Hamlin, Assistant Professor of Political Science, Grinnel College, author of the recent Let Me Be a Refugee.

Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science, U. of Pennsylvania, and author of Civic Ideals, a finalist for the 1998 Pulitzer Prize in History.

Dan Tichenor, Philip H. Knight Professor of Social Science, U. of Oregon, and author of Dividing Lines, winner of the Gladys Kammerer Award.

As moderator, I have asked the participants to take 3-5 minutes to address what aspect of our immigrant past best illuminates our current situation, and then we will immediately open the floor to audience questions.

McCullen v Coakley, When a qualified right trumped a fundamental right

Yesterday the Supreme Court issued its opinion in McCullen v Coakley, about a Massachusetts law that creates a 35 foot buffer zone around abortion clinics.  The Court unanimously struck down that law as an impermissible violation of one's speech rights.  Apparently in yesterday's decision, the Court left intact their finding in Hill v CO that Colorados's law that persons cannot "knowingly approach" a person without that person's consent within 100 feet of an abortion clinic to talk to the person, hand them a leaflet, display a sign, or engage in conversation or protest.  The issue seems to be the manner in which the MA law restricted speech.  The Court apparently believed that the persons whose free speech rights were being infringed upon were not "protesters" (who are allowed outside buffer zones) but, persons who are sidewalk "counselors" who  "seek to engage in personal, caring, consensual conversations with women about alternatives."  Egregiously the Court has privileged the zealots speech rights over one's fundamental right to privacy.

How is the Massachusetts law a restriction of speech?  It just restricts the place that speech can take place. There is no unqualified, unrestricted right to speech.  Through many cases, except this one, the Court has said that one's free speech rights is relational to the public welfare and public safety also.  Speech never was an absolute right.  The Court noted there was not enough evidence for the MA law. Huh?  Indeed, Massachusetts had passed the law to address not just the harassment and intimidation women face upon entering the clinics, but also outright violence as evidence by the shooting rampage at two clinics in 1994.  So the Massachusetts law restricts speech within a space roughly half the distance from a pitcher's mound and home plate, and only in that space.

This case is not about free speech being balanced against the autonomy of women.  What happened to a women's right to privacy, which the Court has said is a fundamental right?  I don't mean the privacy that underwrites the Roe v Wade case that grants a right to an abortion.  I mean more practical immediate privacy.  Planned Parenthood and other women's health clinics typically provide not just abortion services but mammograms and pap smears.  Does every women have to explain herself to the sidewalk "counselors" as she enters a clinic about what actual health services she is about to receive?  Or more likely, are the "counselors" simply going to assume that any and every woman walking into a clinic is going to get an abortion and therefore bestow their "counseling" on all entering women anyway.  What happened to the privacy rights of women granted in Griswold v CT of a woman to choose to discuss her health concerns only with her doctor and medical staff? Or to paraphrase former Justice Louis Brandeis, the right to be left the fuck alone?

The opinion really raises more questions than it answers.  When does "quiet conversation" cross the line into intimidation and harassment?  I don't have to raise my voice or swear to be intimidating.  Questioning/badgering/asking for moral justification of someone about their private life choices, even in the most "polite" way, can be intimidating and harassing.  Why does some religious zealot with no actual psychological or social work counseling get elevated to "counselor" who is entitled to offer their uninformed and unwanted ideological opinion to women?  And are such laws really neutral in application? How many "counselors" outside of these clinics are abortion supporters affirming the woman's right to choice?

So much for one's fundamental right to privacy.

McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.

Obama's expansion of presidential power in immigration and healthcare

BLT:  The Blog of the Legal Times reported yesterday that t a House Judiciary hearing yesterday, several constitutional scholars took Obama's recent actions in health care and immigration to task as unconstitutional expansions of presidential power.  (h/t Dan Kowaloski) 

Professor Jonathan Turley of Georgetown Law criticized the steadily expanding power of the presidency since George W. Bush.  With regard to Obama, he stated that the present administration has "an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullification."  Turley accused the Obama Administration of allowing Executive Branch administrative agencies to determine their own jurisdictions. 

I've already noted the reason for the expansion of lawmaking via administrative agency rule changes, which is due to they gridlock and dysfunction in DC have made more substantial  legislative changes impossible.  (For further confirmation of that point, see the recent NYT article about the do nothing, underachieving House of Representatives.)

Regarding immigration in particular, Professor Nicholas Rosenkranz of Georgetown Law criticized Obama for his directing the Department of Homeland Security to deport certain kinds of immigrants (mainly serious criminals) while not deporting DREAMER eligible immigrants, and those with minor children in the U.S. and no criminal record.  Rosenkranz regarded Obama's use of this kind of  discretion as "not within the traditional conception of prosecutorial discretion."  His objection seem to arise from the scale of Obama's instructions, which conservatives have derided as instructing DHS not to enforce the immigration laws on the books, while liberals view it as an exercise of compassion.

Some larger questions that struck me as I read the constitutional law professors objections to Obama's recent actions are:  Is there an inverse relationship between Congress inaction and the expansion of presidential power?  Also, what are the consequences of small-bore lawmaking via incremental administrative agency rule changes in lieu of more lasting legislative change?  My sense on the latter question is that small-bore rule changes are only minor patchwork fixes to the badly broken immigration system and that legislating via rule changes works against the transparency a democracy needs to thrive.

"Hoovering" data on Americans: The continuing drip of disclosures on NSA domestic spying

Whatever one may think of Edward Snowden, his initial disclosure to the Guardian and the Washington Post have led to many more that show the breadth of the NSA domestic espionage.  The public and pundits are continuing to debate these programs legality, and increasingly, why these programs are legal in the first place.  In recent days, the following information has emerged.

1)  The data collection is lot larger than just collecting phone records of persons who call overseas.  The NSA spying program is much larger than Verizon handing over phone records.  It includes PRISM, the program that gathers internet browsing activity via the largest internet providers such as Microsoft and Yahoo, but even PRISM is the tip of the iceberg of a much larger data collection operation. 

Today's Washington Post describes 4 separate programs under the umbrella name STELLERWIND that are broad enough to touch most American's lives.  Two programs collect and store meta data  about the telephone ("MAINWAY") and internet data ("MARINA") use.  Two other smaller programs collect information on content.  "NUCLEON" collects information about your phone call contents.

The Post described these collective programs this way, "[Although] Foreigners, not Americans, are the NSA’s 'targets,' as the law defines that term. But the programs are structured broadly enough that they touch nearly every American household in some way."

2)  Much of the gathering of data has been warrantless. Despite NSA's prohibition from spying domestically, which is the FBI's territory and which requires warrants, and contra all the assurances from public officials that everything done was legal and blessed by federal courts,  tons of personal data on Americans has been collected in warrantless vacuuming up huge depositories of personal data.

CNET reported that "The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls."  From an interview with Rep. Jerrold Nadler (D-NY), CNET added:

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler's disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

3)  Continued stonewalling by intelligence officials about the number of Americans spied upon.  The Washington Post article by Barton Gellman today reported that:

Current NSA director Keith B. Alexander and Director of National Intelligence James R. Clapper Jr. have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as ­NUCLEON.

Perhaps a Microsoft analyst quoted by AP said it best: "Inside Microsoft, some called it 'Hoovering' — not after the vacuum cleaner, but after J. Edgar Hoover, the first FBI director, who gathered dirt on countless Americans."

How much deference is too much on governement domestic spying?

It has been an interesting week not just to be a political scientist in the U.S. but to be a citizen.  The bombshell dropped by Edward Snowden that the NSA is collecting meta data of our phone records via Verizon and other digital records via some of the biggest names in tech has set off a fierce debate.  I have found myself in heated debates with friends, family members, and colleagues, many of whom I did not expect to find on the opposite side of me on this issue.  I am as surprised about who has come out in defense of a program as well as how many are so willing to accept the government's explanations that it is legal, there has been oversight, and no harm has been done to innocent citizens, without probing deeper.  

Today, NYT columnist Thomas Friedman weighed in on the subject.  Friedman professes to be struggling with the NSA programs when he writes:

 I worry about that even more, not because I don’t care about civil liberties, but because what I cherish most about America is our open society, and I believe that if there is one more 9/11 — or worse, an attack involving nuclear material — it could lead to the end of the open society as we know it. If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.” That is what I fear most.

That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime.

As an educated citizen and as a journalist who is presumably trained to ask questions, Friedman's column is shocking in it's lack of further interogation of the government's claims.  It is shocking in that he seems to have no line in the sand and he seems to be willing to tolerate a high level of spying to stave off the day when all of our civil liberties are totally gone.  He never states how much is too much invasion of our privacy.  Are there any limits for him?  Can the government do anything short of  looking at anyone's email, phone records, "anywhere, anytime"?  Based solely on the government say-so about the utility and necessity of the programs, he is willing to believe?

Friedman is also astounding at the level of trust he is willing to bestow in a secret court that has shirked its responsibility to be discerning and a small subset of congressmemebers (certainly not the whole Congress was briefed) who have signed off without much debate.  The FISA Court rubberstamps, not all Members of Congress were briefed, those that were briefed were gagged from raising their concerns. One friend speculated the probably if you audited the records of a federal magistrate anywhere in the U.S. , they will have turned down more government requests for a warrant than the FISA Court.  

In his column today, Friedman said, "Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11 — abuse that, so far, does not appear to have happened."  David Simon similarly stated, "We don’t know of any actual abuse." I agree with Dan Drezner who responded:

Here's my question:  how the f**k would Friedman know if abuse did occur?  We're dealing with super-secret programs here.  Exactly what investigative or oversight body would detect such abuse?  What I worry about is that we have no idea whether national security bureaucracies abuse their privilege. 

Here's what we don't know: What data does NSA have (phone records, internet browsing records?), How long is the meta data kept? How many person's information has been stored (probably not just people who make calls to foreign nationals), Who has access to the data?, How is the data analyzed?  What is the number of citizens who have been contacted by the governmend based on the meta-data analysis?  How many of those contacted were actually engaged in terrorism?  Even Members of Congress cannot answer these questions.

With all that is unknown, Friedman, Simon, and many others are willing to trust that no abuse has occurred and have stopped asking further questions of the program.  We can debate whether legality confers legitimacy (the program is technically legal), and whether the checks and balances system is enough to curb government abuse, but in this case, the most rudimentary checks were missing, so why trust the government on this?

A society moving toward less individual privacy and tolerance of more government surveillance

An immigration law colleague asked me to comment on his paper about privacy rights in the immigration context.  As I read his paper, in which he argued that the traditional "border" for immigration enforcement purposes has shifted, several thoughts came to mind about two seismic shifts in American political and legal culture that conspire to increase government surveillance power and decrease individual privacy rights.

First, certainly the advancement of technology such as GPS, digital tracking etc. makes surveillance possible, easier, and more invasive.  But the spread of surveillance techniques has been also due to public acquiesce to it or at the very least, a lack of resistance.  The rise of technological innovation paralleled the largest expansion of government power since FDR and the New Deal.   The 9/11 attacks precipitated the second largest expansion of national (and really specifically Executive power) since the 1930s.  Even the federal courts have been diffident and complicit in this Executive power grab.  As the Executive branch repeatedly throws down the national security trump card, the federal courts seem to weigh in only when there is a particularly egregious due process violation.  The public also seems willing to endure rollback of individual rights and privacy “to make us all safer.” 

Second, as Executive power has expanded, there is also a generational shift underway on a growing tolerance of invasions of privacy because of the rise of social media.   The generation of students I teach now (undergraduates born in the early 1990s) are the Facebook/Twitter generation in which many previously private thought is now shared to the public.  It is actually tricky to teach privacy to my undergrads because they don’t understand what all the fuss is about.  Their thinking is, “I have nothing to hide.  I’m not doing anything bad, the government can watch me all they want.”  The mentality about privacy these days among the younger generation is very nonchalant; their threshold for surveillance, I would argue, is very high because of the ubiquitousness of what they view as benign social media in their lives.

I actually have to push them and ask why they have drapes or curtains in their homes and why they don’t leave the doors wide open when they use the restroom, or allow an installation of a webcam in their bedroom, if indeed they have “nothing to hide.”  Only then do they realize privacy is also about, “I really have nothing to hide, but it’s also none of your business” and that they wouldn’t want Peeping Toms watching them.

Given these shifts in legal and political culture, how do those who still value privacy and want to reign in state power accomplish their goals?  Is law and the Fourth Amendment on unreasonable search and seizure even a sufficient tool for checking government surveillance in the face of these social forces?  I don't have a good answer for either question.

Why Mirandize Dzhokar Tsarnaev?

Among the many legal questions coming out of the Boston bombing case, including discussions of whether to try Tsarnaev in military or civilian courts is the issue of whether to Mirandize him and when he gets the warnings read to him.  He was assigned a federal defense attorney and finally Mirandized more than 48 hours after his caputre at a bedside hearing on Monday.  The transcript of that hearing is here.   This case has presented a teachable moment about the "public safety exception" to the Miranda warning protections.  Up to this point, most Americans did not know there were any exceptions to someone receiving the  Miranda warnings--indeed it is probably fair to say much of the public assumed Tsarnaev was or would be quickly Mirandized.

The first issue is whether Tsarnaev should be labeled an "enemy combatant" or not.  The labeling of the suspect makes a big difference in that it determines his access to legal rights and protections.  Senators Graham and McCain (R-AZ) argued that that he should be treated as an enemy combatant and therefore denied counsel at public expense and denied Miranda warnings.   In a series of tweets beginning Friday, Senator Lyndsay Graham (R-SC) endeavored to re-write the constitution.  He stated, "The last thing we may want to do is read Boston suspect Miranda Rights telling him to remain silent.'"  If he was labeled an "enemy combatant" Tsarnaev could also have been taken to Guantanamo Bay.  But Tsarnaev, it was discovered, is a naturalized U.S. citizen.  Those issues were quashed when charges were filed against Tsarnaev in federal district court, civilian courts.

The next legal issue to be decided was when and if Dzhokhar Tsarnaev should be read his Miranda rights.  The federal government invoked the public safety exception, which derives from a rape case from 1984, NY v Quarles.  In that case, a rape suspect was caught with an empty gun holster.  Out of concern of the danger posed by the missing weapon, the police questioned the suspect before reading him his Miranda rights.  Emily Bazelon has written a fabulous article explaining how the Obama Administration and Attorney General Eric Holder have stretched that public safety exception to cover terror suspects.  No courts have weighed in on whether those moves are in fact constitutional.

In practical terms, delaying the reading of Miranda rights to Tsarnaev by invoking the public safety exception means that anything Tsarnaev says even before he was Mirandized is still admissible in court.  Public safety at stake or not, make no mistake that the exception waters down Miranda protections and gives the  government and police more latitude to coerce information from a suspect, even a false confession.  Tsarnaev may well be guilty, but it is worth recalling the history of why the Miranda warnings became necessary in the first place including a long history of coerced false confessions of poor and minority suspects and the intangible benefit that Miranda warnings help build public trust in law enforcement.

One legacy of the unending "War on Terror" is that the public and the federal courts have granted extremely wide latitude to the Executive branch and its agencies to do what it deems best in the name of protecting the public.  Glenn Greenwald has repeatedly argued this point and he views the erosion of Miranda warnings in the Tsarnaev case as business as usual in the context of the War on Terror.  The public diffidence and the federal courts' silence on this issue has meant that the built in checks and balances in our political system may not always work, especially when it comes to suspects charged with particularly heinous crimes like the surviving Tsarnaev brother is.

And indeed that is in the end how rights are eroded and government power is aggrandized, by targeting a despicable suspect whose treatement will raise no public outcry.  As Bazelon eloquently wrote:

The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety. That may or may not be the case with Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario. And that should trouble anyone who worries about the police railroading suspects, which can end in false confessions. No matter how unsympathetic accused terrorists are, the precedents the government sets for them matter outside the easy context of questioning them. When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape for the rest of us.

One cannot help but recall Pastor Niemoeller's WWII era statement, “First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.”

Miranda warnings and other elements of procedural justice are not to coddled the criminals; they are for the protection of  the innocent and a counterbalance to the overwhelming and disproportionate power of the state.  The state had the power to shut down mass transit, tell citizens of a major city to "shelter in their home" for a whole day, and had men and guns by the hundreds if not thousands.  What do you and I have?  We should grant suspects, however disgusting, Miranda rights and other procedural protections not as a matter of grace, but because the Constitution requires it.

Background of NY DOMA challenge

Next month, the Supreme Court will hear two gay rights cases: first a challenge to DOMA in United States v Windsor, and then a day later, a Prop 8 challenge from CA in Hollingsworth v Perry.  It's worth revisiting the compelling details of the DOMA case of Edyth Windsor and Thea Clara Spyer who were together for 42 years until Spyer's death.  Windsor was then hit with an exorbitant estate tax bill because federal law did not recognize her marriage even though she was legally married in the state of NY.  Their story is here.

The Obama Administration, through the Solicitor General's office, filed a brief in support of overturning DOMA arguing for removing one plank of DOMA: the plank that defines under federal law, marriage as between a man and a woman.  The other plank of DOMA allows states not to recognized gay marriages from other states.  A good summary of the Administration's brief is here.

H/T Roger Hartley