America Made a Pact With the Devil After 9/11, Let's Not Do It Again After Boston

When government changes the law to suit the demands of the people when they are weeping, it fundamentally undermines our freedoms.


The government's fidelity to the Constitution is never more tested than in a time of crisis. The urge to do something -- or to appear to be doing something -- is nearly irresistible to those whom we have employed to protect our freedom and to keep us safe. Regrettably, with each passing violent crisis -- Waco, Oklahoma City, Columbine, 9/11, Newtown and now the Boston Marathon -- our personal freedoms continue to slip away, and the government itself remains the chief engine of that slippage.

The American people made a pact with the devil in the weeks and months following 9/11 when they bought the Bush-era argument that by surrendering liberty they could buy safety. But that type of pact has never enhanced either liberty or safety, and its fruits are always bitter.

The Constitution is the supreme law of the land. It was written to create and to restrain the federal government. Every person who works for any government in the U.S. has taken an oath of fidelity to the Constitution, not unlike the presidential oath, which induces a promise to preserve, protect and defend the Constitution.

The chief and final interpreter of the Constitution is the Supreme Court. One may not always agree with its interpretations, but they are, as legal scholars sometimes say, "infallible because they are final." Those interpretations are particularly final when we have relied on them for generations.

One of those rulings underscores the primacy of constitutional protections, no matter the environment in which they are claimed. Indeed, after the Civil War had ended and President Lincoln was dead, the Supreme Court in a case called Ex parte Milligan (1866) rebuked and reversed Lincoln's unilateral assaults on personal freedoms in the North and in so doing reminded us that the Constitution was written for good times and for bad, and its protections cover all persons at all times and under all circumstances who have any contact, voluntary or not, with the government.

The court has also ruled consistently throughout the 20th century that just as the First Amendment protects the freedom of speech, it also protects the freedom not to engage in speech. One hundred years after Milligan, the Supreme Court first recognized and articulated the constitutional basis for the right to remain silent in the Miranda case. That right is a natural right that is inherent in all human beings, and it is arguably articulated in the First and Fifth Amendments.

But since the court understood that most folks don't know that they have the right to remain silent in the face of government demands for speech, it mandated that all governments -- local, state and federal -- comply with their affirmative obligation to tell everyone in their custody whom their agents wish to interrogate about the existence of this right, as well as the obligation of the government to honor it faithfully once it has been invoked. That has consistently been the law of the land for the past 50 years.

The pact with the devil occurred in the fall of 2001, when then President George W. Bush and Congress decided that they would use the machinery of the federal government to secure safety, rather than liberty. So, the Bush-inspired Patriot Act permits federal agents to write their own search warrants, and the Bush-inspired new FISA statutes permit search warrants of some Americans' phone calls without a showing of probable cause as the Constitution requires, and the Bush-era intimidation of telephone service providers permitted our overseas spies to snoop on our domestic phone calls. None of this has enhanced safety, and all of it has diminished liberty.

In the Obama administration, the devil has demanded more. In the past five years, we have seen federal spies capturing the keystrokes on our computers, local police using federal dollars to install cameras and microphones on nearly every street corner, and, the latest lamentable phenomenon, the use of false emergencies to undermine freedom.

This began at the Mexican border, where immigration agents have been told to interrogate first and Mirandize later. It moved to Washington, where we have an attorney general who has told federal agents that the extremely limited public safety exception to the Miranda rule can exist for up to 48 hours. And it proceeded to the spectacle of well-meaning FBI agents being told to reject their training and the common understanding of well-regarded constitutional law and interrogate a half-drugged suspect with a hole in his throat whom they were about to charge with mass murder, in utter defiance of Miranda.

The public safety exception to Miranda goes to the safety of the officers and others present at the moment of arrest. It permits the police to express an excited utterance ("Where's the gun?") in an effort to protect themselves before securing the defendant and before advising him of his rights. According to the Supreme Court, it can last for just a few seconds.

The Obama administration's radical reinterpretation of the natural and constitutional right to remain silent is unprecedented, terrifying and disingenuous. Think about this: The governor of Massachusetts, the superintendent of the Massachusetts State Police, the mayor of Boston, the Boston police commissioner, and the head of the Boston FBI office all proclaimed on Saturday morning that the danger had passed and Boston and its suburbs could return to normal. Yet the attorney general in Washington told his FBI agents in Boston to disregard those officials and instead pretend that the public safety was still jeopardized and then expand a 10-second window to 72 hours.

The Constitution was written to preserve freedom by restraining the government. The courts from time to time have required the government to respect the natural law, as well. But when the attorney general arbitrarily changes the law to suit the demands of the people when they are weeping, it fundamentally undermines our freedoms. And a pact with the devil is the most dangerous of all, because his appetite can never be sated.

NEXT: Detroit Bar Owner Says Suburban White Kids Beat Him Up

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  1. I'd give up freedom for a steak and baked potato right about now.

    1. Bloomberg says the steak will raise your cholesterol and the baked potato will raise your blood sugar, so that meal is a felony in NYC.

      1. Seriously?!

        But seriously, as ashamed as I am to admit it, there are a few things in life I'd value over the Constitution, amongst which are a steak and loaded baked potato.

        1. Those who would sacrifice freedom for steak and potatoes deserve a vegan tofu wrap.

          1. Shut down the thread.

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          2. Those poor soybeans! You can't subject the soy to the torture of being pressed into tofu, eat beef!

        2. You can have your potato, but it must remain unloaded and locked away in a safe place.

          1. Look, no one is trying to take away your starchy tubers. But what American needs a fully loaded baked potato to accompany a steak?

            1. We should all be forced to eat a baked potoato and steak once per week. Then everyone would know how delicious they are. Perhaps then we could stop being a nation full of compelte pansies and not worry so much about what people eat.

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  2. One of those rulings underscores the primacy of constitutional protections, no matter the environment in which they are claimed. Indeed, after the Civil War had ended and President Lincoln was dead, the Supreme Court in a case called Ex parte Milligan (1866) rebuked and reversed Lincoln's unilateral assaults on personal freedoms in the North and in so doing reminded us that the Constitution was written for good times and for bad,

    They could rebuke Lincoln because he was dead. When he was alive, he would just ignore them, as he did regarding Ex parte Merryman.

    1. Lincoln's argument was that the government shouldn't follow a law that would lead to it's own demise. Of course, this is an extreme exaggeration of the harms that would have resulted if habeus corpus was enforced. The same kind of trick was used by O.W. Holmes, Jr. in his decision for Schenck v. United States.

    2. "Mister Marshall has made his verdict. Now let him enforce it."

  3. And this doesn't even address the 4th Amendment issues of "exigent circumstances" being extended to every house in a 20 block area and pointing guns at every innocent civilian they came across.

    Seriously, people cheered the cops when this was over.

    Fuck me in the ear.

    1. Those on the east coast are so eager to surrender every American's liberties to buy themselves a little temporary and false security it makes it difficult to believe that it's the same region of the New World where the belief in doing the opposite was born.

    2. Somebody put it best yesterday on these forums: "If you're pointing a gun in my face, you're not rescuing me."

      Boston PD is kind of notorious for being a bunch of armed thugs, but you look at what they did during this whole exercise and it looked more like an army of occupation than the boys in blue protecting and serving.

      There's so much wrong about what happened, and I expect that as the days go by we're going to hear more and more stories of people being frog-marched out of their homes at gunpoint and less "Boston Strong" bullshit. I mean, they shut an area the size of a large town down and went house to house searching for one suspect, which is utterly retarded methodology anyway, and then DIDN'T FIND HIM. It wasn't until, predictably, a civilian out for a smoke after military curfew lifted checked in his boat that the cops even got a lead. Then, as it turns out, he in fact wasn't armed as was first reported when the cops started firing. Also, turns out they did not in fact knock over a 7-11. I'm not a black helicopter guy by nature, but this is just so damn suspicious.

      Even if it's only (!?) a matter of the authorities totally ignoring the Constitution and enacting a police state because of what, to be quite frank, is a comparatively minor attack, that's a travesty. But god forbid this really was a "false flag" event, because the infants are already bawling for their nanny state, and the "Boston Strong" crowd is cheerleading for the police without question.

      1. Sure sounds like your part of the black helicopter crowd.

        1. Considering that the cops and authorities are regularly proven to lie or bend the truth, its hard to not think about crazy stuff. We have canonized the public authorities after 9/11 and now they can get away with anything. That's not conspiratorial. I particulalrly loved how that fat police chief was wearing a hat that looked just like nazi hat.

  4. If only the Judge would've taken another path and chose to win a seat in Congress where he could have helped bring about even a little positive change instead of simply recognizing what is right and what is wrong.

    1. We need him on the Supreme Court!!

      1. Could you imagine it? The SCOTUS would be the Greatest Show on Earth.

      2. He would never be allowed. Strict and logical interpretation of the constitution is strictly forbidden in Washington.

      3. I'd like see him locked in a room with BO and a camera for an interview. BO would be terrified.

    2. Napolitano articles always help clear my head and get my thoughts pointing a little more due north toward liberty.

      Enemy combatant, the more I read, the more that particular term scares the beatlejuice out of me.

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  6. A pact with the devil? No, those at least give you some temporary benefit.

  7. I know the Judge knows this, but he's not clear about it in the article: There is nothing unconstitutional about questioning a suspect in custody without informing him of his right to remain silent. It is unconstitutional to use any information obtained in that manner as evidence against him. There's a difference.

    Evidence obtained through a non-Mirandized confession can be used against OTHER suspects without violating the Constitution, because one person's 1st/5th Amendment right to remain silent does not belong to and cannot be enforced by anyone else. Miranda is just a poorly-reasoned SCOTUS opinion that requires LEOs to inform suspects in custody of their natural and constitutional rights to keep their mouths shut; it is not the source of that right. Miranda is basically no more than a procedural rule of evidence.

    1. Actually, I don't believe it is unconstitutional to use any evidence obtained before Mirandizing. For example, if an un-Mirandized suspect is asked where the weapon is, and the suspect tells them, the police can use that information to locate the weapon, and that weapon can then be used in trial. It would not be admissible at trial that the suspect knew where the weapon was, however.

      1. s/weapon can then be used/weapon can then be used as evidence/

        No, the weapon cannot be used to shoot the defense team.

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