Minority Report

Out here in Hollywood even the big guns screw up now and then. In 2002 Steven Spielberg gave us the overwrought Minority Report. This wasn’t ET or Close Encounters of the Third Kind – pleasant and hopeful science fiction with kindly and kind of cute aliens from outer space. There were no aliens in this one, just ordinary people in a nasty future. Maybe Spielberg was paying homage to Fritz Lang – who, seeing how things were going in 1927 or so, also didn’t think much of the future. The future wasn’t going to be nice at all. And in the Spielberg future things are also turning sour. Criminals are caught and dealt with before the crimes they commit – the state collects evidence of what everyone is certain to do, and removes those who are going to do what they shouldn’t. It’s much more efficient – kind of a Bush preemptive thing. If you have the technology for that why not use it?

So, everyone should be happy with this. Bad things don’t happen. But then one of the officers in the special unit that does this sort of preemptive arrest and elimination is accused of one of these inevitable crimes. And of course he sets out to prove his innocence, if you can use that word when no act has yet been committed. Was he set up by someone with a grudge? Was there something wrong with the technology? Was the whole concept of preemptive elimination flawed?

It was all rather heavy-handed and was certainly gloomy, but then it was based on a short story by Philip K. Dick – the master of darkness, whose stories had been turned into Blade Runner, Total Recall and other such things. And it didn’t help that that the guy in the movie who had been wrongly condemned, for what he was certain to do but hadn’t done yet, is played by the unceasingly irritating Tom Cruise, who, as is his wont, strikes a lot of poses and pretends he’s acting. Maybe he’s the alien from outer space.

But really, this particular Steven Spielberg movie disappeared soon enough because, as snazzy as the art direction and special effects were, and a big as box office draw Cruise was at the time, the movie was didactic, without being particularly entertaining. Back in the thirties Louis B. Mayer or Samuel Goldwyn or Jack Warner – no one quite knows which – said it best. If you want to send a message use Western Union.

But maybe Minority Report will return to rotation on secondary basic cable – the place for movies that are interesting enough but just didn’t quite hit the sweet spot. Yes, the Bush Doctrine – our new and amazing policy of preemptive war – is now in disrepute. We really didn’t have the technology. We collected evidence of what Saddam Hussein was certain to do, and the evidence turned out to be wrong. And with warrantless wiretapping – actually data-mining all electronic communication here and abroad – all we did was piss off a lot a of people who had nothing to do with anything and force the bad guys to find alternative ways of planning bad deeds, which they then committed. Spielberg gave us a High Concept movie on what are now dead issues. But there may be life in this old dog of a movie yet.

But of course the movie would have to be set on Forty-Second Street. That cuts across the middle of Manhattan, from the UN on the East River, then the Chrysler Building, then Grand Central, then the famous library with the stone lions out front and Sex and the City’s Bryant Park, and then Times Square:

A Pakistani-American who prosecutors say admitted driving a car bomb into New York’s Times Square waived his right to an initial court appearance on Wednesday to keep talking to investigators, sources said.

To recap, young Faisal Shahzad, born in Pakistan and who became a United States citizen last year, has been charged with attempting to use a weapon of mass destruction and trying to kill and maim people within the United States – for starters. There are other counts. Heck, they might get him for littering. But street vendors saw what was happening. They alerted police – a smoking SUV parked in Times Square on a Saturday evening with its engine running and its hazard lights flashing was a tad scary. Thousands of people were evacuated and a police bomb squad diffused the bomb, such as it was – two cheap alarm clocks, lots of wire not connected to much of anything, some firecrackers, three propane gas tanks and a lot of that nasty nitrogen-based fertilizer that Timothy McVeigh had used in Oklahoma City. But Shahzad had the wrong kind of fertilizer – what he bought wasn’t the kind that would explode. And when he walked away, hoping this thing would explode, he left the keys to his getaway car, which he had earlier parked a few blocks away, in the rear door of the ominous SUV – so he had to take the train back home to Connecticut, from Grand Central. Oops.

But the Taliban in Pakistan claimed responsibility for the plot – very scary. But while investigators said they sort of see “plausible links” between Shahzad and that group, they’re not so sure about that. If the Taliban in Pakistan trained Shahzad they did a piss-poor job. The thinking is the Taliban in Pakistan financed this effort, and obviously good help is hard to find these days. But Shahzad, who is the son of a retired Pakistani vice air marshal of all things, kept saying he had received bomb-making training in a Taliban and al Qaeda stronghold in Pakistan.

Maybe he did – but if he did, Shahzad may be trying to embarrass his instructors for some obscure reason. Maybe he feels he had been left hung out to dry. Who knows?

Shahzad was arrested on Monday night after he was removed from an Emirates plane at Kennedy – that flight was about to head off for Dubai and he had been on his way back to Pakistan. But even he knew he’d blown it:

“I was expecting you. Are you NYPD or FBI?” local media reported Shahzad as saying to Customs and Border Protection agents when they approached him on the plane.

And then he waived his right to an initial court appearance and his other constitutional rights – he seems to have decided to talk. Shahzad faces life in prison if convicted of the charges against him, unless he negotiates a lesser sentence in exchange for cooperation – and he can hardly plead that he is not guilty, as it’s a little late for that and he knows it. So it’s in his interest to tell us stuff, and let us verify it and prove he’s now trying to do the right thing, and thus we’re learning a lot from him. The same thing happened with the Christmas Day Underpants Bomber in Detroit.

Sure, we could have sent Shahzad to Guantanamo to be tortured until he said anything we wanted him to say – anything at all, whatever he imagined we wanted him to say, just to stop the pain – but once again there was no need for that. There’s a reason that Fox torture-is-good drama “24” is shutting down after eight seasons – the star, Kiefer Sutherland, and the executive producer said they just don’t want it to go on. Why bother? The whole premise turned out to be dumb.

But that’s where there’s an issue with, of all things, who deserves to be considered guilty and denied the right to defend themselves, even if, as in this case, guilt is not an issue:

The issue of extending terrorism suspects the same rights as criminal defendants has been the subject of much political debate in the United States. Conservative opponents of President Barack Obama say they should be treated as enemy combatants and denied rights in order to collect intelligence.

But federal investigators have claimed success in gathering information from suspects – even after reading them their rights. They cite the recent cases of a Nigerian charged with trying to blow up a Detroit-bound plane with a device hidden in his underwear, and that of a foiled New York subway bomber.

The argument is over Miranda rights, the right to legal counsel and the right to remain silent and not be forced to say things that will incriminate you – just basic stuff. But the idea is that if you tell people they have the right to remain silent they will remain silent, and you’ll learn nothing, and we’ll all die. And that has to stop. In fact, Joe Lieberman said this:

I think it’s time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.

He will introduce legislation to that effect – become affiliated with the wrong people and you lose your citizenship, as citizenship is, as he says, not a right you have, but a privilege. See Greg Sargent here:

Two things you should know about this: First, it isn’t just some paranoid liberal nightmare. It’s actually moving forward. Lieberman is going to hold a presser tomorrow to introduce the bill, I’m told, along with Rep. Jason Altmire of Pennsylvania. Sen. Chuck Schumer (D-N.Y.) has already signaled he could support this.

Second, Lieberman’s office has clarified to me how the law would work: It would empower the State Department to conclude – on its own – that Americans are conspiring with terror groups and should be stripped of their citizenship.

Lieberman’s law would amend an earlier statute that details other things that can cost you citizenship: Serving in the army of a foreign state, pledging allegiance to a foreign state, and so on. In those cases the State Department decides whether your disloyalty merits loss of citizen status. Lieberman’s law would add involvement with a foreign terror organization – as opposed to a foreign state – to this list.

Yeah, yeah, we all know that serving in the army of a foreign state and pledging allegiance to a foreign state will cost you your citizenship, except for the carve-out in the current law – 8 USC Section 1481 – which is that if the foreign state is Israel there will be no problem at all. But this is new, and Chuck Schumer later clarified his stance – he’ll have none of Lieberman’s nonsense. Joe misunderstood him.

But this is the Spielberg movie. See Adam Serwer:

This is really absurd. What Lieberman is proposing is that we strip people of American citizenship based on mere suspicion of a crime, which would then mean that they have no right to due process. Actually, not even suspicion of a crime – mere “affiliation” with people the government thinks are bad guys. What Bill of Rights?

This is a dumb idea, because foreigners legally on American soil are as entitled to due process as American citizens. Such an approach wouldn’t actually do anything to fight terrorism; it would merely offer more ammunition for the notion that America is at war with Islam and not terrorists, since this legal double standard would only apply to Muslims accused of terrorism. From the point of view of gathering intelligence, throwing away the key gives little for interrogators to offer in the way of incentives.

This is culture-war counterterrorism, and it’s about as useful as it sounds.

But Lieberman is stuck on how awful Miranda is – no one should have the right to remain silent, really. There are things we need to know. And we’ll know them. If you’re a citizen and claim the right to remain silent, we can say you’re not a citizen, really, and ship you off to Guantanamo and torture you to get you to say just what we want to hear, and then try you in front of a military commission, not a civilian court – or at least that’s the general idea. And it’s not that you’ve committed a crime. It’s that we know you will commit a crime in the future, like in the Spielberg movie. And by the way, you’re not Tom Cruise either.

This is very odd, and at Slate, Emily Bazelon argues that the case of Faisal Shahzad, the Times Square bombing guy, is a spectacularly bad test case for arguing against the Miranda warning. And she points out that even Glenn Beck says so – “We do not shred the Constitution when it’s popular. We do the right thing.” Beck also said this – “How is it that saying a citizen should have their rights read to them … is controversial?”

And she points out that in the Shahzad case Miranda worked:

Law enforcement officials can invoke a public safety exception and delay reading a suspect his rights to get information that would save lives. In Shahzad’s case, the FBI invoked the public safety exception. The agency called in its crack interrogation team, asked Shahzad questions with no Miranda warning, and reaped what the FBI says was “valuable intelligence and evidence.” Then Shahzad was read his rights. And lo and behold, he waived them and kept talking.

But then John McCain, who once sponsored laws to prevent torture, and Christopher Bond, the ranking Republican on the Senate intelligence committee, would have none of that. Bond said this – “We’ve got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States.” McCain’s point was the same – “When we detain terrorism suspects, our top priority should be finding out what intelligence they have that could prevent future attacks and save American lives. Our priority should not be telling them they have a right to remain silent.”

But then the FBI invoked the public safety exception, the guy talked, a lot, and Bazelon comments:

The facts don’t line up at all well with the senators’ reflexive tough-guy posturing. And yet the Republicans have to posture anyway. And the Washington Post editorial page (isn’t it supposed to be calmer and wiser?) has to join them, asking: “How long was Mr. Shahzad questioned before he was read his Miranda rights? And what triggered the Justice Department’s decision to suspend the ‘ticking time bomb’ exception in case law that gives law enforcement officers an opportunity to gather information before advising a suspect of his right to remain silent?”

What is the Post talking about? Or was the editorial board so eager to pounce on the Obama administration for its handling of the case that it didn’t even read its own newspaper? Is this a problem of different deadlines? Good grief. The Post editorial also criticizes the administration for not saying whether the FBI used the crack interrogation team (called the High Value Interrogation Group) on Shahzad. But the administration did say so, and the answer is yes.

Of course, after he was read his rights, Shahzad could have chosen to shut up. The Christmas Day bomber, Umar Farouk Abdulmutallab, asked for a lawyer and stopped providing information after he was Mirandized. But that time, too, interrogators got good stuff first – because that time, too, they used the public safety exception.

And Bazelon explains that option:

One person to thank for that is former FBI special agent Coleen Rowley. After the FBI bobbled the interrogation of Zacarias Moussaoui in 2002, Rowley wrote a memo pleading that “if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles ‘public safety’ exception to Miranda’s 5th Amendment requirements.” …

Quarles is New York v. Quarles, the 1984 Supreme Court case that carved out the public safety exception to immediately reading a suspect his rights. The court said the police were justified in waiting so that they could first ask a suspect in a rape where his gun was. (They knew about the gun from the rape victim and because he was wearing an empty holster.) Rowley has weighed in about the Shahzad interrogation on Huffington Post, and she’s happy. (OK, she’s practically gloating: “I wanted to shout ‘I told you so!'” she writes.)

And as for Lieberman, Bazelon says this:

Stripping people of citizenship automatically when they are charged? … Not convicted, even – just accused?

This is still a pretty extreme view, or so I would like to think. When Jose Padilla was arrested in 2001 for his part in a supposed “dirty bomb” plot, which then-Attorney General John Ashcroft and the Bush Department of Justice later downgraded at least twice to a relatively small-fry conspiracy, the Supreme Court was asked whether Padilla could be detained indefinitely, despite his American citizenship. Padilla by then had been held for two years as an “enemy combatant” at a military brig in South Carolina, without being charged or tried. The Supreme Court punted on a technicality.

Before Padilla’s case could make it back up the ladder, the Bush administration tried him as a citizen in civilian court. Padilla was convicted – because in fact the system is good at prosecuting homegrown terrorists. The Supreme Court never answered the radioactive question of whether an American citizen suspected of terrorism can be detained indefinitely without charges, because the government didn’t demand an answer. And in the case of Faisal Shahzad, the federal government had all the tools it needed to catch him, get information from him, and send him to prison for the rest of his life, if he’s guilty.

We can have all that – and Miranda, too.

And at his Atlantic blog, Andrew Sullivan adds this:

The appalling behavior of John McCain and Joe Lieberman this past week underlines what a bullet this country missed by electing Barack Obama president. This, remember, was McCain’s original dream-ticket – before a forty hour Google search unleashed brain-dead boobage across the land. Look at their instincts: find a citizen terror suspect and tear up the constitution to … do what exactly? McCain won’t say. Or: strip the guy of citizenship immediately and then get to work on him.

And Sullivan notes that Megan McArdle has a simple question:

Can someone explain to me – hopefully using graphs, and small words – why Joe Lieberman is willing to share the precious blessing of American citizenship with Charles Manson, Gary Ridgeway, and David Berkowitz, but wants citizenship stripped from a guy who strapped some firecrackers to a bag of non-explosive fertilizer?

And Sullivan continues:

Now recall that McCain and Lieberman were celebrated in Washington for their alleged maturity, wisdom, and elder statesmen experience. They are in fact adolescent hysterics, whose terrorized Manichean view of the world sees nothing but an existential struggle and the imperative to win it. We would have been electing Cheney to a third term. And we barely knew it.

Nope – leave adolescent hysterics to the movies. Cast Tom Cruise in the lead role.

And at the New Yorker, Steve Coll settles the matter:

Whatever the narrative behind Shahzad’s case turns out to be, we can take solace that we will hear it in a court of law. Amidst the country’s often self-defeating search for a justice system to address terrorism, his is not a particularly hard case – a US citizen arrested on US soil for a crime against Americans carried out in New York. We can nonetheless look forward to “The Daily Show” clips showing cable television anchors railing about the Obama Administration’s failure to recognize him as a warrior.

Fortunately, like one of those Eleven O’clock News bank robbers who tries to rob an ATM only to topple it over on himself, Shahzad’s case may help to illuminate a truth larger than himself: Terrorists are criminals, and the great majority of criminals are prosaic.

And the great majority of movies are prosaic, even some of those from Steven Spielberg. And a note to McCain and Lieberman and the rest – Minority Report was only a movie. And it was science fiction, not an instruction manual.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Due Process, Joe Lieberman, Miranda Rights for Terrorists, Times Square Bomber and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

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