Right-Wing Media's Own Legal Experts Undermine Campaign To Shred Due Process

Blog ››› ››› SERGIO MUNOZ

Over the objections of their own legal experts, right-wing media continue to argue the alleged Boston bomber should be denied constitutional rights unlike the hundreds of terrorists before him who have been successfully tried and convicted.

Prominent right-wing media figures have advocated a wide range of unconstitutional treatment for Dzhokhar Tsarnaev, the 19-year-old U.S. citizen accused of complicity in the Boston marathon bombing and subsequent murder of a police officer. Echoing GOP politicians from Sen. Lindsay Graham (R-SC) to Rep. Michelle Bachman (R-MN), right-wing media have called for Tsarnaev to be denied the constitutional protections regularly given to domestic or foreign terrorists in this country, both before and after the September 11, 2001, attacks.

Fox News hosts have suggested using torture on Tsarnaev because not all American citizens are "worthy of the constitutional rights that we have." The Wall Street Journal joined the dangerous clamor (fueled by Graham and Bachman) to indefinitely detain Tsarnaev in military custody as an "enemy combatant." Conservative pundit Ann Coulter told Fox's Sean Hannity she wanted authorities to "shoot up the boat" when they found Tsarnaev unarmed and "get him an automatic death penalty there."

When the Department of Justice initiated criminal proceedings against Tsarnaev, right-wing media turned their ire upon Attorney General Eric Holder and President Barack Obama for not preventing the federal judge from following the law. National Review Online's John Yoo accused the president of the "elevation of ideology over national security." Fox host Megyn Kelly continues to pretend "the public safety exception to Miranda lasts only 48 hours." A Washington Times columnist called for President Obama's impeachment because he is "unwilling" to protect America.

Beyond the hypocrisy of applying a standard to Tsarnaev they do not apply to other forms of terrorism and their call for the president to push back against the courts even though they constantly attack him for "lawlessness," right-wing media's own legal experts are trying to rein in their colleagues.

For example, Fox News legal analyst Peter Johnson, Jr. scolded Fox's Brian Kilmeade for denying constitutional rights to some Americans, stating "either we believe in the Constitution or we don't believe in the Constitution." Fox News host Greta Van Susteren explained to Bachman that "you can't just -- the Supreme Court says you can't just hold someone without charges. So they were obliged -- so the U.S. attorney's office was obliged to charge him by a criminal complaint. You have to charge him."

In fact, when they've received resistance, some of the legal experts have pushed back even harder on these basic legal points, to the surprise of their hosts.

From the April 23 edition of Hannity with Johnson, Jr.:

HANNITY: So did they rush to Mirandize the suspect to give his defense the upper hand?  Did it essentially open the door for this terrorist to negotiate with the U.S. government?

[...]

JOHNSON, JR: I don't think that makes sense. There's an opportunity to make a deal at any time. Nothing has been lost. The public safety exception went into effect. He was interrogated for intelligence and national security purposes. Now he's going before an American court with American rules and American laws. I say the Constitution has to stand. I say that terror should not divide us, nor should terror tear down our laws and our Constitution. You can't have it halfway. You can't have half a constitution and say, okay we're going to treat him as an enemy combatant, but then we're going to try him later. We can pass laws, we can change the Constitution, but for convenience sake, let's not drag our Constitution into the toilet. Abraham Lincoln used to say: as president I have no eyes but constitutional eyes. That's the prism by which we should be viewing this case. As loathsome and disgusting and as horrible a citizen as he is, he still an American citizen.

From the April 25 edition of America's Newsroom with former judge and Fox News senior legal analyst Andrew Napolitano:

NAPOLITANO: A defendant in federal court must be brought immediately before a judge. If he at large they arrest him. If he is already in FBI custody they bring him to the judge. If they can't bring him to the judge they bring the judge to him. The law requires this immediate or soon as possible first appearance. In the first order of business, Bill, the defendant's first appearance is the Miranda warnings.

[...]

BILL HEMMER (host): So don't file the criminal complaint and you can do what you want?

NAPOLITANO: No. If they don't file the criminal complaint within a certain period of time they have to let him go. They're caught in catch-22. You arrest someone. You have to file a criminal complaint in order to justify keeping them. But once you file that criminal complaint you have to bring him before a judge and have their rights read to him.

HEMMER: There's this public safety exception, right, for the Miranda rule that was started in 1984. The administration picked it up again and reinforced it in 2011 I do believe, which would allow the FBI to question this guy for perhaps even a longer period of time?

NAPOLITANO: Let me tell you what the public safety exception says. The Supreme Court has one opinion on it, it lasts for 10 seconds. Lasts for the time of the arrest. So the arresting officers are not jeopardized, and they can say, without giving a Miranda warning, where is the gun? Is anybody else with you?

From the April 26 edition of Happening Now with former prosecutor and Fox News legal analyst Arthur Aidala:

AIDALA: [A]ny American citizen who is charged with a crime has a right, once you're in custody and there has been a complaint filed against you, has a right to see a judge as soon as possible. And what they did was they followed the same laws and rules that are in place that they teach you in law school, your first year basically, when you do criminal procedure.

[...]

Everyone is entitled to this right. He is an American citizen. Whether we like it or not -- the best example is, look at the guy with the ricin. He was accused of killing the president! Trying to kill the president of the United States a week ago! They got it wrong!

JON SCOTT (host): Right.

AIDALA: Should we have stripped him of all of his rights?

SCOTT: There is little more evidence against Dzhokhar Tsarnaev than there is against that poor guy in Mississippi.

AIDALA: But he is a poor guy in Mississippi. And luckily we didn't strip him of his rights. Luckily he did have due process and our system is good enough to realize we made a mistake and release him as soon as possible.

SCOTT: You're talking like a defense lawyer.

AIDALA: Well, I've done it for 16 years. I'm an ardent defender of the Constitution. I'm a big Thomas Jefferson guy.

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