The pseudonym used in these posts is meant to protect the person who has appointed the author of this junk from having to account for the private ravings of a Public Servant. The utility of this device could be tested just a bit by what follows from someone who has been prosecuting criminals for more years than are even imaginable.

In an attempt to avoid mixing political views from the daily travails of the work that pays the bills, it is best to try not to listen to at least some of the noise that various machines emit during the course of a week.

When Susan Collins, once a dependable semi-Republican who seemed to have enough common sense to avoid talking like the screwballs who have taken over her party, decided to educate the public about the horrible Department of Justice, which, of course, is called "the Obama Administration" for political reasons, and the Christmas Day underwear guy

Abdulmutallab [who] was questioned for less than one hour before the Justice Department advised him that he could remain silent and offered him an attorney at our expense.

Once afforded the protection our Constitution guarantees American citizens, this foreign terrorist 'lawyered up' and stopped talking.

it became impossible to keep work and blogging entirely separate.

The meme of the month has been this canard about giving accused terrorists (sorry; not allowed to say "accused" anymore if the person said to have done something has a funny last name) a "protection" which we are said to have guaranteed to "American citizens." Susan Collins knows that is not so.

If there was any question about the reach of our Constitution, the Supreme Court answered it shortly after the Fourteenth Amendment was enacted following the Civil War to provide that the states, no less than the federal government, would be required to apply the equal protection of its law, and what the Fifth Amendment also calls "due process" essentially meaning a fundamental fairness in the way it operates. As you will recall, one of the major grievances of our founders was that the prior sovereign authority did not always see it that way.

In 1884, the Supreme Court decided to make sure that Sen Collins, and any other Phi Beta Kappa with responsibility of educating our public understood that

[t]hese provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws....

The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.

Yick Wo v. Hopkins, 118 U.S. 356 (1884).

That's the kind of country we are. It is why people came here when we were an English colony and in the twentieth century. With all the nativists, "know nothings," "America Firsters" and just plain racists, we lifted our lamp before the golden door, and invited people, including the people who produced my parents, to a land which would provide the protection of its laws, to citizens and non citizens alike.

Then there is this: As anyone who has ever watched a crime show on television knows, and those who read Anthony Lewis' great book, Gideon's Trumpet might know better, the case of some guy named Ernesto Miranda caused the Supreme Court in 1966 to require that, in most instances, agents of a government, must advise a person in custody of his constitutional rights under the Fifth and Sixth Amendments (and, as to the states, the Fourteenth Amendment) to remain silent and to the assistance of counsel.

Thus, as noted here the other day, there really is no such thing as "Miranda rights" though we all use that expression all the time. Ernesto's case only involved the issue of who has to be given the quickie course in the ancient dictates of the Fifth and Sixth Amendments and when.

What happens if this little speech is not given? Under something called the "exclusionary rule" which the Supreme Court first came up with as applied to the federal government in 1914, and applied to the states in 1961, the evidence, meaning statements, confessions, admissions made by the person in custody or anything learned through them, cannot be used (as they used to say on Dragnet), "in a court of law."

So, if the police are afraid that by giving someone a twenty second legal education they won't learn valuable intelligence, they need not give the warnings at the pain of not being able to use the statement against the person if he is to be tried as a criminal defendant in a court of law.

There is very little which supports the fear expressed in 1966, when Miranda was decided, or before that when many state courts required similar warnings, that defendants, advised of these rights, suddenly decide not to answer questions or "lawyer up" for that reason. Defendants typically are willing or not willing to speak to law enforcement irrespective of the recitation of their rights. There are few people in law enforcement who do not know this, and the constant litigation we have over whether, for instance, the defendant asked for an attorney and was disregarded, or refused to talk and then changed his or her mind, is testament to the fact that Miranda does not seriously retard law enforcement in any significant way.

What people really mean when they object to "giving him his Miranda rights" is that police did not beat the defendant up.

But that was never a legal way to obtain a statement to be used against someone (though courts did not always enforce that rule before Miranda, which is one of the reasons the Supreme Court decided that case that way. If a confession or statement is "involuntarily" made, meaning the product of, for instance, a beating, it will be suppressed in civilian court, AND in a military court.

And Senator Phi Beta Kappa, here, just in case you think this cannot be so, are the relevant portions of the Uniform Code of Military Justice.

(a) No person subject to this chapter may compel any person to
incriminate himself or to answer any question the answer to which
may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request
any statement from, an accused or a person suspected of an offense
without first informing him of the nature of the accusation and
advising him that he does not have to make any statement regarding
the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a
trial by court-martial.

(c) No person subject to this chapter may compel any person to
make a statement or produce evidence before any military tribunal
if the statement or evidence is not material to the issue and may
tend to degrade him.

(d) No statement obtained from any person in violation of this
article, or through the use of coercion, unlawful influence, or
unlawful inducement may be received in evidence against him in a
trial by court-martial.

In any event, sadly, Mr. Underwear's cooperation with the government has now become the stuff of legend. His family told him to do so, we have been told.

It is of no moment. A skilled questioner can get information from someone willing to provide it, and nobody can get anything of use from someone not willing to do so. As jurors are often told, medical science has not yet found a way to determine what is in someone's mind. Anybody who tells you otherwise, whether she be named Susan Collins, or Dick Cheney, is full of it.

What you object to is the system itself: the rights accorded by our courts. The best and wisest (if meanest) judge Barth's alter ego ever met, the late Harold J. Rothwax wrote a reasonably short and straightforward book about that subject, one which many Kossacks and the like would bash (and have bashed) without giving it the due it deserves, but this is not the time to debate that. Yes, the excitement of the Warren Court years, and the desire of younger judges to feel as if they are part of this, has caused courts throughout the land, and particularly in my state, to extend some of these rights in an absurd way, giving rise to a not unreasonable view that many people escape effective prosecution because of foolish "technicalities" as they are often called.

Among them would be Hero of the Right, Col Oliver North, who was compelled to give evidence about an illegal scheme to defeat an embargo against arms sales to Iran, and use the proceeds to illegally fund people fighting in Nicaragua. Since that testimony was on national television, courts held that there was no way to insure that the evidence against him was not somehow a "derivative use" of "compelled" testimony in violation of the Fifth Amendment, and his conviction had to be reversed.

But that's the way it goes. The people who do this work do what they can to convince courts to more reasonably apply these rules and ever day have to make decisions about whether to protect a future prosecution or a current threat.

If you are the victim of a crime, the issue of whether Al Qaeda was responsible for it is way less important than it appears to be to some members of the Republican Party. Moreover, the rule they propose is not entirely clear: if somebody tries to blow up an airplane, or shoot people or do something else which we don't like much, what makes it appropriate for criminal prosecution as opposed to calling the person "an enemy combatant" with whatever consequences that presents (such as becoming a "prisoner of war" subject to the protections of the Geneva Conventions)? If Senator Collins can call him a "terrorist" and not a "common criminal" ? (Has the latter title become one of great renown or respect?) Is it his last name, where he came from, who are his friends?

As a prisoner of war, we are required to respect a person's "military rank." Does Senator Collins think, maybe, we should salute the guy or his underwear?

Nobody except loudmouth politicians think we have one set of rules for citizens and another for non citizens. Our courts require due process. Period.

And, the idea of some in the Government when the President was named Bush, Jr., to get around our laws by holding people in Guantanamo didn't work either. The Supreme Court stopped that dodge by explaining, though some people did not want to hear it, that many federal statutes have extra territorial effect. One of them is the habeas corpus statute which limits the circumstances under which a person---any person---can be held in the custody of the United States, under its authority or the color of its laws.

Speaking specifically of Guantanamo, therefore, the Court held, just six years ago, that

the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians....Section 2241 [the habeas statute], by its terms, requires nothing more. We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.

OK. Class dismissed. Now we just have to wait to see if the Times really has some bombshell to get Gov Paterson out of the race, whether CBS can do a newscast that doesn't remind viewers that it will be televising the Super Bowl or NBC do one that doesn't find a way to mention the winter Olympics.