Freedom is messy and ugly

This is a piece I wrote this week that, for the most part, went unnoticed. It was written with the anticipation that once the people responsible for the Boston marathon bombing were captured, there would be a cancerous call to remove them from the justice system as outlined in our Constitution. We love the Constitution,of course, but we’re often afraid of it.

Sen. Lindsey Graham took to Twitter last evening to declare that the suspect in the bombings should be treated as an “enemy combatant,” with no constitutional protection. There is, you may have noticed, nothing in the 4th Amendment about this, just as there is nothing in, say, the 2nd Amendment about background checks.

This isn’t a conversation about background checks, though; it’s about our national tendency to treat the Constitution as a cafeteria, choosing the rights we like while ignoring the ones that are inconvenient.

We can talk about not allowing terrorists to destroy or damage our way of life. But every word in the Constitution is our way of life.

Anyway, here’s the post I wrote in the middle of the week.

4/18/13 11:09 a.m.

I have written often over the years about the power of the U.S. Constitution, which comes exclusively from our willingness to extend its tenets to the most vile, despicable people on earth, or simply to the person next door whose political views we abhor.

It’s easier to talk in patriotic terms than it is to act in a patriotic way. It is easier to swear allegiance to one, favorite article of the Constitution than it is to swear allegiance to all of them.

Freedom is messy and does not well lend itself to bumper sticker slogans. We can sing about it, we can carry signs about it, we can hold our hands over our hearts for it. We just can’t agree on it. The coverage surrounding several different — some unrelated — news events of the week are converging on this fact.

Esquire’s Charles Pierce, it’s safe to say, is not a fan of what happened in the U.S. Senate yesterday, where opponents of expanded gun background checks held sway. In his piece today — The Violence We Live With — he decries the fact mayhem and slaughter go hand-in-hand with freedom in our society.

Make no mistake. That is what was determined down there this week among the bright, white buildings. There is a barbarism in the American soul and we must protect some of it by law. To root it out is to endanger our lives on the one hand, and our liberty on the other. We must tolerate the barbarism of the black sites to stay alive, and we must tolerate the occasional mass shooting in order to maintain our liberty. We will find the barbarian who killed and maimed the people along Boylston Street in Boston because his barbarism was not sanctioned, nor was it sanctified by law. That is the simple basic equation of where we are right now.

Gabrielle Giffords was told this. The families of the children of Newtown were told this. The 91 percent of the American people who want something that they now have no hope of getting were told this, The president of the United States, fairly shaking with impotent anger in the Rose Garden, was told this. We are a violent people. We are an armed people. We are a people intent on permitting mayhem and slaughter. We are a people intent on providing the means for mayhem and slaughter. And because of all of this, we are a free people. It is an odd day to be looking down at Our Nation’s Capital, where barbarism has become so tailored and manicured, and so utterly unremarkable. We might as well speak honestly about it. We might as well speak about it here.

This week, the New York Post — owned by arguably the most powerful and influential person in mass media — has continued a steady drumbeat of inept, inaccurate, unethical, and scurrilous journalism. It indicted a Saudi man who had nothing to do with Monday’s bombing in Boston, feeling no shame in abusing the freedom it had to do so.

Today, for example, it zeroed in on two men in the crowd in Boston.


“Those are not the pictures that are going to be released today by the authorities,” CBS’ John Miller, a former FBI insider, said.

And yet, we are required to acknowledge — if not cheer — the Post’s right to be so consistently inciteful, inept, and insulting to our sensibilities.

At some point — maybe today, maybe not — a suspect in Monday’s bombings will be arrested and we will, again, come face to face with the conflict between the freedom we love and our visceral side, as evidenced by other Rupert Murdoch employees, who called for him/her/them to be sent away without trial.

That, Elie Mystal suggests in an Above the Law column today, is a fundamental ignorance of freedom and rights we claim to cherish.

Look, it seems to me that if and when they arrest the guy (or guys, or gals) the police will have three options:

1. Shoot him to death.

2. Beat the piss out of him.

3. Interrogate him.

I’d like to think that there is broad consensus that options one and two are potentially satisfying, but ultimately antagonistic to justice in a civilized society.

The police are going to interrogate him. And they’re going to do so in a way that they hope finds his accomplices and establishes his motives all in a way that will hold up in a court of law.

In that context, why wouldn’t they read him his rights? Are they afraid it will take too long? Remember, the Miranda rights are there to help law enforcement so that later criminals can’t claim that they were denied the protections of the the Fifth Amendment. They are a prophylactic for the cops so they don’t have to confirm that people truly understand their constitutional protections.

Why would these people on Fox argue that the cops should risk losing a good arrest on self-incrimination grounds when it is so simple for police to just read the guy his rights?

See, I think what the anti-Miranda people really want is for people to not know their rights… because they think if he knows his rights, he might call a lawyer, and somehow that’ll just mess everything up.

You see, there is a world of people out there who think every criminal defense lawyer is Saul Goodman, a criminal who happens to be a lawyer and thinks that his job is to help criminals evade justice. In fact, good defense lawyers allow justice to proceed. Why do we even have a right against self-incrimination? It’s so people cannot be bullied into confessing to crimes they didn’t commit, or worse, confessing to facts that didn’t happen.

Freedom can be incomprehensible and infuriating. Long may it live.