Daniel Greenfield article: The
Constitution and the Times Square Car Bomber

The Constitution and the Times Square Car Bomber

Posted: 04 May 2010 07:58 PM PDT

Faisal Shahzad, the Times Square Car Bombing suspect, has been
caught and will predictably enough be routed through all the formal
legalities reserved for Islamic terrorists trying to kill Americans. He
will get a criminal trial, a lawyer and a jail sentence after which he,
like so many of his compatriots will be released to try and kill again.
And quite possibly sooner than anyone might think.

Meanwhile on FOX, Glenn Beck protested the idea of denying a
Miranda Warning to Shahzad because he is a US citizen and "you don't shred
the constitution." Obviously Beck isn't very familiar with the
Constitution, because at no point in time does it mandate a Miranda
warning, or compel civil trials for armed insurgents. Instead Beck has
confused the Miranda Warning, one of the Warren court's judicial
innovations with the Constitution. This is a mistake commonly made by
liberals and those who have not educated themselves regarding what the
Constitution actually says.

The Warren court pursued its radical
agenda of judicial activism by creating an entire spectrum of "rights"
based on spurious readings of the Constitution. Warren's technique was
simple enough. He would take the actual Constitution and reinterpret the
text to suit his political agenda. The actual ruling was not anything that
the Framers had ever intended, and had nothing to do with the actual
purpose the text was meant to serve. It was just a convenient hook to hang
his ruling on.

Take Cruel and Unusual Punishment, which had been
meant to ban all sorts of hideous executions and tortures that had been
practiced in Europe. The Warren court used it to ban the denaturalization
of a army deserter and to rule that imprisoning heroin addicts is illegal,
because their addiction is a sickness, not a crime. This had nothing to do
with the Eight Amendment of the United States Constitution which was meant
to ban certain painful physical punishments, not to control whether
junkies could be taken off the street or defectors could be deprived of
citizenship. Instead it was used by the court to ban the death penalty for
rape, to ban the death penalty for 17 year old murderers, and temporarily
the idea of the death penalty itself.

The Miranda Warning that Beck
insists is in the Constitution is based on a similarly spurious reading
which made the leap to arguing that questioning a suspect without
informing him of his rights, such as the aforementioned Ernesto Arturo
Miranda, a serial rapist, was the equivalent of denying him those rights.
The court's argument in Miranda was that being taken into custody is so
intimidating that it is essentially a form of compulsory
self-incrimination.

For Beck to argue that a failure to Mirandize
"shreds the Constitution" would mean that he seriously believes that the
Constitution had been shredded all along until 1966 when Earl Warren fixed
it by adding the requirement of a Miranda Warning. This is a belief widely
held on the liberal side of the aisle, but I don't think Beck believes
that. He is simply following the widely held liberal indoctrination which
treats the rulings made through Judicial Activism as equivalent to the
actual text of the Constitution.

In his dissent Justice Harlan
warned quite accurately that; "I believe the decision of the Court
represents poor constitutional law and entails harmful consequences for
the country at large. How serious these consequences may prove to be, only
time can tell" and pointed out that this was not a ruling meant to
prevent abuse, but to protect abusers; "The new rules are not designed
to guard against police brutality or other unmistakably banned forms of
coercion... Rather, the thrust of the new rules is to negate all
pressures, to reinforce the nervous or ignorant suspect, and ultimately to
discourage any confession at all."

And Harlan pointed out the
risks of treating such a criminal rights agenda as Constitutional. "To
incorporate this notion into the Constitution requires a strained reading
of history and precedent and a disregard of the very pragmatic concerns
that alone may on occasion justify such strains."

All this
applies rather glaringly to terrorists, where the question goes well
beyond mere criminal conviction. The bottom line is that we are at war.
Not with a single serial rapist, but with a fanatical Islamic ideology
that like Communism before it, demands world conquest.

Faisal
Shahzad was
naturalized barely a year ago. Does anyone seriously believe that
before this time he did not hold whatever views impelled him to try and
set off a car bomb in Times Square? Does being an enemy combatant who took
US citizenship under false pretenses entitle him to full immunity?

The Bill of Rights was intended to preserve the rights of
Americans, not of enemy combatants masquerading as something they are not.
An Islamic terrorist has by definition taken a false oath, as he certainly
does not bear "true faith and allegiance" to the United States. He had no
intention of defending it against its enemies. He is one of its
enemies.

During WW2, Nazi Germany sent a number of saboteurs into
the United States, one of whom was a US Citizen. They were not given
Miranda Warnings, obviously. They were not treated with kid gloves. They
were tried by a military tribunal and executed less than two months after
they arrived in the United States. Read that again. Less than 2 months. If
you want to understand why we won WW2 and are losing the war now, consider
the implications of what you just read.

The old United States could take an enemy combatant, arrest
him, try him, run the decision through the Supreme Court, and still
execute him in under two months. We're lucky if we can bring a captured
terrorist to trial after 7 years. At which point we release him on time
served and send him back to fight us again. If we had Osama bin Laden
sitting in the dock right now, if he confessed to every crime and begged
for the death penalty, it would probably still take us at least a decade
to execute him, assuming we could even find a jury that would vote for the
death penalty for him.

And Miranda is one of the reasons why. Not
so much Miranda itself, as the agenda behind it. The agenda that gives the
murderer every form of defense and discretion, and provides none to his
victims. The agenda that rewards evil, but punishes good.

The fact
of the matter is that
it was common practice to treat spies, saboteurs and pirates as
unlawful combatants who were tried by military tribunals and executed at
will, regardless of whether their disguise included US citizenship or not.

In the case of the WW2 saboteurs, Ex parte Quirin, the
court stated that;

...entry upon our territory [317 U.S. 1, 37] in time of
war by enemy belligerents, including those acting under the direction of
the armed forces of the enemy, for the purpose of destroying property
used or useful in prosecuting the war, is a hostile and war-like act. It
subjects those who participate in it without uniform to the punishment
prescribed by the law of war for unlawful belligerents. It is without
significance that petitioners were not alleged to have borne
conventional weapons or that their proposed hostile acts did not
necessarily contemplate collision with the Armed Forces of the United
States.

Paragraphs 351 and 352 of the Rules of Land Warfare,
already referred to, plainly contemplate that the hostile acts and
purposes for which unlawful belligerents may be punished are not limited
to assaults on the Armed Forces of the United States. Modern warfare is
directed at the destruction of enemy war supplies and the implements of
their production and transportation quite as much as at the armed
forces. Every consideration which makes the unlawful belligerent
punishable is equally applicable whether his objective is the one or the
other. The law of war cannot rightly treat those agents of enemy armies
who enter our territory, armed with explosives intended for the
destruction of war industries and supplies, as any the less belligerent
enemies than are agent similarly entering for the purpose of destroying
fortified places or our Armed Forces. By passing our boundaries for such
purposes without uniform or other emblem signifying their belligerent
status, or by discarding that means of identification after entry, such
enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does
not relieve him from the consequences of a belligerency which is
unlawful because in violation of the law of war.

The only remaining objection to treating Faisal Shahzad as
an enemy combatant is that there is no "declared war" and thus there can
be no enemy combatants. This is a basic fallacy that relies on the fact
that we are not fighting individual nations, but rather an ideology. We
have come as close as possible to declaring war, within that limitation.
Islam is not an enemy state, just as Communism is not an enemy state. It
is a war waged by followers of a global ideology who number in the
hundreds of millions. The language of conventional wars fought by one
nation against another cannot encompass this.

But those who would
condemn the War on Terror as illegitimate because it is not against a
named state, had better be prepared to argue that the
Tripolitan War fought against Muslim pirates without a formal
Declaration of War under Thomas Jefferson, their destruction supported by
George Washington, was equally "Unconstitutional".

Jefferson's
push for an international alliance and his eventual determination to go it
alone, arguably made him the first Neoconservative. The likes of Ron Paul
might castigate the Founders as "Unconstitutional" because they fought the
Tripolitan War without a declaration of war, assaulted the sovereignty of
the Pasha of Tripoli, and didn't read anyone their Miranda Rights, but I
don't think anyone else in their right mind would. And the War on Terror
has been more formally declared than
the Tripolitan War.

Indeed what warmonger neoconservative was it that said;
"Would to Heaven we had a navy able to reform those enemies to mankind
or crush them into non-existence". Was it Dick Cheney? No, I'm afraid
it was George Washington, who would no doubt be pilloried today for his
genocidal rhetoric in the editorial pages of the modern New York Times and
the op eds of Pat Buchanan on AntiWar.com. But Washington was a man of
peace as well as a man of war, and he understood that there are times when
"war is not of our choice." This is one of those times.

There's
something fundamentally wrong when people who should be conservatives
instead start talking like ACLU lawyers. Start believing that Miranda is a
Constitutional right, rather than a bit of judicial activism legerdemain.
Start thinking that we should be fighting the War on Terror by following
the model of the American Bar Association, rather than that of Washington,
Jefferson, FDR and every wartime President between them.

The
Constitution was never intended to serve as a suicide pact. It was never
intended to protect enemies of the United States under the colors of the
flag. Its Bill of Rights protected the rights of Americans, not the rights
of its enemies. Our laws exist in order to safeguard the rights of
Americans. When they are exploited to aid those who deprive Americans of
their lives and liberties, then they have been undeniably perverted to
play a role opposite to that of their original purpose. The work of the
Warren Court is a comprehensive illustration of laws turned in on
themselves. No country can have or maintain laws inimical to its survival
for very long. And a country that protects its enemies will eventually
fall by their sword.