Kagan pick could threaten our national security

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If you thought the nomination of Elena Kagan to the Supreme Court did not affect you or have an impact on our society, think again. All Americans should be concerned that the current administration is re-thinking the constitutionality of the public safety exception before Mirandizing a person suspected of a terrorist or unlawful attack. Our country enters its ninth year of waging a war that so far has not affected most Americans. However, this needs to change and it will soon need to be a kitchen-table conversation everywhere.

For far too long, lawyers and military personnel have been the only participants in discussing the legalities of the War on Terror. One of the post-9/11 realities is that America is at war with an enemy without a standing army and not subject to protections afforded nation states. But, how do we treat foreign-born terrorists like the Christmas Day underwear bomber Umar Farouk Abdulmutallab? Do we subject a foreign born terrorist to the same rights given to U.S. citizens? Better question, how do we treat a U.S. citizen suspected of terrorism? Obviously, we all are aware of the common definition of terrorism, however the Supreme Court is bound to face the interpretation of terrorists as this battle continues to evolve.

The public safety exception allows law enforcement officials to delay reading Miranda rights to a subject with the notion that the person has valuable information that could lead to further harm to others. It does not take away the right of self-incrimination afforded all citizens. It merely allows law enforcement time to gather critical information that could lead to further harm.

Pulitzer Prize winner Charles Krauthammer believes it is time to update and modernize Miranda since the arrest of suspected Times Square bomber Faisal Shahzad. I could not agree more. This administration must come to terms with these important questions before the battlefield ends up on our doorsteps and then we must react in a rush. The potential Supreme Court judge, Ms. Kagan, should be questioned where she stands on the constitutionality of trying Americans as unlawful combatants or criminals.

Last week, Attorney General Eric Holder appeared on the Sunday morning talk shows to discuss the ongoing investigation of Shahzad and surprised many by his insistence that Miranda be reviewed. He said the Obama administration would look to Congress to modify existing laws pertaining to the “ticking time bomb” rule as the public safety exception is also known as. However, he wrongly conflated the Abdulmutallab and Shahzad cases. There is a distinction in how we treat citizens and non-citizens. Right?

Under current law, a suspected terrorist picked up overseas for suspicion of terrorism against our country is to be dealt with by military means. The Authorization for Use of Military Force Against Terrorists, enacted on Sept. 18, 2001, stated, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or…in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The constitutionality of whether a U.S. citizen is bound to this law has not been addressed. As the Shahzad investigation unfolds, we are likely to see this question come up.

The precedent for giving the executive branch the authority to detain an enemy combatant is the Quirin case from 1942. However, as I touched on earlier, we now face an enemy without borders. Hence, we now have deemed our new enemies unlawful combatants and not afforded them the same rights as uniformed adversaries.

By reading Shahzad his Miranda rights after he had been questioned for some time, we uphold the ideals of our Constitution to give our citizens justice. But, when this suspect pledges allegiance to an organization whose aim is to kill Americans using the same tactics as al-Qaida overseas, then what? It is time to hear what exactly this administration would do if we were targeted again.

An easy solution would be to render anyone caught in the act of terrorism an unlawful combatant and tried in a military tribunal. However, we rely on our elected officials to make tough decisions. Therefore, during the upcoming nomination process of our next Supreme Court justice, Senators should not let her off the hook on this issue.

Sergio Rodriguera Jr. is an IT Security Consultant and a former counter terrorism Advisor at the Department of Treasury. He served as a Defense Fellow at the Pentagon from 2007 to 2009. Recently, he was Deputy Officer in Charge of the Afghanistan Threat Finance Cell and was at ISAF HQ from July 2009 to April 2010.