Miranda and other myths

By Dan Popp

Senator Lindsay Graham started a firestorm for asserting that the surviving Boston bombing suspect need not be read his rights, as required by the Supreme Court's Miranda decision (Miranda v. Arizona, 1966). Graham's remarks alarmed some folks who thought that he was "suspending the Constitution" and that, since the suspect is an American citizen, he should not be treated as an enemy combatant.

I'd like to try to unravel both of those myths.

First of all, Miranda is not a part of the Constitution. There are no "Miranda rights" if you believe that rights come from God and not from the Supreme Court. So what are we really talking about? We're talking about, as Thomas Sowell has categorized it, Affirmative Action for stupid criminals. The smart criminals know their rights, and it is "unfair" that the stupid criminals don't have the same advantage over the law-abiding, so we have to bring the stupid criminals up to the level of the smart ones.

This is one of those newfangled "rights" like health care that is actually an anti-right; a right to impose costs on others. Another word for this is "injustice." It's a right to do wrong – a self-nullifying concept.

Now the 5th Amendment is a part of the Constitution. It forbids the government to force someone to incriminate himself. However, it does not force government to inform you of things about which you have neglected to inform yourself. And I have the sneaking suspicion that those who champion this clause of the 5th Amendment for Mr. Tsarnaev are not ready to assert the 5th Amendment's clause against seizure of my property without due process of law. I don't see leftists demanding jury trials for everyone who pays income taxes. Their selective outrage is hypocrisy.

Second, I don't believe that Mr. Tsarnaev is a citizen.

Yes, I know he was naturalized, and I assume he even has the documentation to prove it. But in order to become a US citizen he had to swear his loyalty to this country against its enemies:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same... and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. – Naturalization Oath of Allegiance to the United States of America

If the suspect is guilty of the atrocities with which he is charged, we can only conclude that he lied to become a citizen. Therefore his citizenship is invalid.

It's yet another instance for discerning whether we're talking about rights denied, or qualifications unmet. If he did not meet the qualifications to become a citizen, then he is not by rights a citizen even though he may be one nominally. To give you an analogy, if you were to forge a birth certificate in order to become a birthright citizen, you would not actually be a birthright citizen. Until and unless your fraud was discovered, you would be granted the privileges of a citizen, of course. But each time you falsely accrued a benefit not belonging to you, you would be committing an additional crime against the United States. Your false status could not confer true privileges.

The same would apply if you were to lie on a résumé to get a job. When discovered, you would lose the job that was never yours by right.

So "public safety exception" or no, Miranda rights are phony rights, and they could by no means apply to a non-citizen enemy combatant, which is clearly what Mr. Tsarnaev (if guilty) considered himself at the time.

I would not revoke this guy's right to a trial. On the contrary, I would give him two trials: The first to adjudicate his citizenship status, and then either a military tribunal or a civil trial, depending on the outcome of the original trial.

© Dan Popp