In the immediate aftermath of the failed Times Square bombing, the fundamental right to a fair trial by jury was sought to be jettisoned by those who adhere to the philosophy that whatever rights need to be sacrificed in order to “make us safe,” must be sacrificed. Some even called for the citizenship of a US citizen merely accused of committing an act of terrorism, to be summarily stripped in order to prosecute them in a military tribunal instead of a civilian court. In such a setting, the “Great Writ” of habeas corpus would be discarded in order to “streamline” the prosecution of accused terrorists.
Now that these security-above-all advocates have had a few more days to think about it, two more of our heretofore cherished rights rest in their gunsights as impediments to the so-called “global war on terror.” The freedom to exercise one’s right guaranteed under the Second Amendment to possess a firearm, and the rights to be free from incriminating oneself and to have legal counsel — as guaranteed under the Fifth and Sixth Amendments — would be limited under a new “terrorism exception.”
New York Mayor Michael Bloomberg, long an advocate for the most pinched and narrow interpretation possible for the individual right to “keep and bear arms,” is of course leading the fight to further erode this fundamental liberty. In the wake of the Times Square incident, His Honor has renewed calls for a statutory prohibition to purchase a firearm for anyone on a “terrorist watch list.” The mayor even coined a cute, but utterly inappropriate phrase for what he considers a gross deficiency in federal laws designed to keep guns out of the hands of criminals and other explicit categories of dangerous persons. The fact that a person whose name might appear on a secret government “terror watch list” is not now prohibited — based on that alone – from purchasing a firearm (as is a person who has actually been convicted of a crime). This “loophole” illustrates what Bloomberg calls the “terror gap.”
The fact is, persons whose names appear on various government watch lists have not been proved to have been convicted of anything; nor have they been adjudged mentally incompetent, surrendered their US citizenship, or been dishonorably discharged from the military (all categories that under present law prevent one from purchasing a firearm commercially). Persons on watch lists simply have been deemed by one or more government bureaucrats or agencies to be a “threat.” Yet that is enough for New York’s mayor and others who have long disdained the freedom represented by the Second Amendment, to deny such persons the fundamental human right of self defense.
With regard to the Fifth and Sixth Amendment rights to be free from unknowingly providing the government evidence to be used to convict a person, and to have meaningful assistance of a lawyer in criminal proceedings, the vehicle the security-at-all-costs advocates have selected with which to attack these rights is the ever-popular-to-beat-up “Miranda warning.” Parroting the mischaracterization of such rights as contained in the famous, 1960s-era Miranda Supreme Court decision as a mere “technicality,” advocates from the Attorney General on down are proposing to carve out a “terrorism exception.” In this scenario, whenever a person is suspected of having committed an act of “terrorism,” he or she could be questioned by the authorities without being apprised that they do not have to do so without first being able to consult privately with a lawyer (which is even now permitted in a bona fide emergency situation).
A major problem here is that the number of offenses that fall under the umbrella of “terrorism” offenses, is extremely large; and goes far beyond those represented by the Times Square and Christmas Eve underwear bombers. Persons who might be engaged in a protest of domestic policies, such as the operation of an abortion clinic, and who do not engage in violence but might physically impede access to a clinic, might very well fall within a police officer’s or a prosecutor’s interpretation of an act of “domestic terrorism.” Denying such person the fundamental right to consult with an attorney before being interrogated by police, would make as much sense as asserting that a person should be denied the right to purchase a firearm simply because a government investigator has decided a person is a “threat.”
Hopefully, before such myopic and wholly unnecessary limitations on our Bill of Rights are enshrined in law, what true constitutionalists remain in the Congress will make their voices heard and stop such dangerous tinkering with these vital liberties.