Adam Serwer

Reporter

Adam Serwer is a reporter at Mother Jones. Formerly a staff writer at the American Prospect, he has written for the Washington Post, the Root, the Village Voice, and the New York Daily News.

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Four Republicans Who Don't Understand the Constitution They've Sworn to Defend

—By Adam Serwer

| Mon Apr. 29, 2013 7:14 AM PDT

Members of Congress swear an oath to defend the Constitution of the United States, but that doesn't mean they understand it. Over the past week, several Republican lawmakers have expressed outrage over the fact that Dzhokhar Tsarnaev, the surviving suspect in the Boston marathon bombings, was read his rights and reportedly stopped talking to interrogators. These GOPers have accused President Barack Obama of making a grave error by recognizing the constitutional rights of a suspected terrorist.

The Obama administration, however, didn't have a choice in the matter. Tsarnaev was read his rights by a magistrate judge during an initial appearance that was required by the federal rules of criminal procedure, which are rooted in the constitutional right to due process under the law. The Supreme Court has held that, barring exigent circumstances, a criminal suspect has to be brought before a judicial officer within 48 hours, give or take, at which point the suspect is informed of his rights no matter what.

The interrogation priorities of law enforcement officials don't count as exigent circumstances, because the point of the rule is to prevent secret detention and to inform suspects of the charges against them. The public safety exception to reading suspects their rights affects whether suspects' statements can be used in court. It does not affect the requirement that a suspect see a judge within 48 hours. These Republicans don't seem to understand that distinction.

Rep. Peter King (R-NY): The former chairman of the House homeland security committee told CNN the fact that Tsarnaev was read his rights was "disgraceful" and said "It is the matter of life and death. I don't know of any case law which says that magistrate has a right to come in to a hospital room and stop an interrogation." Rep. King, let me Google that for you.
Senator Dan Coats (R-Ind.): On CNN's "State of the Union" Sunday, Coats said that he "was very surprised that they moved as quickly as they did. We had, I think, legal reasons and follow-up investigative reasons to drag this out a little bit longer...I think the AG, attorney general, should have sent a signal basically saying we're within our legal bounds in doing this for the public safety exemption." This seems to be a popular misconception. Again, the public safety exception affects the admissibility of statements in court. It does not magically eliminate a suspect's constitutional right to a speedy trial.
Rep. Michael McCaul (R-Texas): Rep. McCaul is the current chairman of the House homeland security committee, and a former federal prosecutor, so it's difficult to believe he doesn't know the federal rules of criminal procedure. "The only other avenue we had to get this intelligence is through this emergency exception to the Miranda warning," McCaul told CNN. "But in my judgment, the FBI was cut short in their interrogations when the magistrate judge decided to Mirandize him within 16 hours...I think that cost us dearly in terms of valuable intelligence." Yes, that's a former federal attorney mangling not only the nature of the public safety exemption and the requirement to bring the suspect before a judge, but also constitutional separation of powers. The FBI does not get to tell judges when they should see suspects.
Rep. Mike Rogers (R-Mich): Probably the only thing more embarrassing than being a federal prosecutor who doesn't understand the federal rules of criminal procedure is being a former FBI agent who doesn't understand them. Enter Rep. Rogers, chair of the House intelligence committee, who in an interview with MSNBC last week slammed the judiciary for "interceding" in an interrogation, referring to Tsarnaev being read his rights as "confusing" and a "horrible, God-awful policy" that is "dangerous to the greater community." It's not that confusing: The public safety exemption does not allow interrogators to indefinitely detain and interrogate suspects in violation of their constitutional rights.

Senator Lindsey Graham (R-S.C.) has gone a different route and argued that Tsarnaev should have been held in military detention as an "enemy combatant." But federal law specifically defines those who can be detained militarily as individuals who are play an operation role in foreign terrorist groups like Al Qaeda, and so far the evidence indicates the Tsarnaevs acted alone. It's also possible that holding an American citizen like Tsarnaev in military detention after apprehending him on US soil would be unconstitutional even if some tie to foreign terrorist organizations were discovered.

Dzhokhar Tsarnaev is accused of doing horrible things. But he is an American citizen who is entitled to all the rights due him under the Constitution, none of which would mean anything if the government could pick and choose when they apply. Then they wouldn't be rights at all.

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Charts: Are the NYPD's Stop-and-Frisks Violating the Constitution?

As New York City defends its controversial policing policy in court, here's what you need to know.

—By Adam Serwer and Jaeah Lee

| Mon Apr. 29, 2013 3:00 AM PDT

This week, New York City is defending itself against a lawsuit that claims its controversial "stop and frisk" policy is used to illegally detain and search people on the basis of race. The subject of an ongoing trial, the suit also argues that the weak justifications given by NYPD officers for most stop-and-frisks fail to meet the constitutional burden for search and seizure. We put together this explainer and some charts to help you make sense of what's going on.

What is "stop and frisk," exactly, and what does it have to do with the NYPD? Starting in the 1970s, in the hope of curbing street crime, New York City began encouraging its officers to stop people they deem suspicious, to question them, and, if there is adequate reason to suspect illegal activities, to pat them down for things like drugs and weapons. This type of police activity has been upheld in the past: In a landmark 1968 case, Terry v. Ohio, a police officer detained three men without a warrant, suspicious that they were casing a local convenience store for a hold-up. One of the men had a revolver, and the Supreme Court ruled that the warrantless search was constitutional because the cop had reasonable suspicion to believe the men were about to commit a crime.

If it's constitutional, then what's the problem? Well, it's not always constitutional. It's only constitutional when the police have reasonable suspicion to believe someone poses a danger, has committed a crime, or is preparing to commit one. And police cannot use race as a criterion for any search and seizure. But New York City has faced allegations of unconstitutional policing against communities of color for a long time.

[Read the full article]

Frank Luntz Withdraws University of Pennsylvania Scholarship Over Secret Tape

—By Adam Serwer

| Fri Apr. 26, 2013 2:09 PM PDT

Following Mother Jones' publication of remarks GOP message man Frank Luntz made to University of Pennsylvania students about conservative talk radio, Luntz has decided to withdraw funding for a university scholarship named after his father that sends students to Washington, DC, according to the Daily Pennsylvanian, an independent student newspaper at the school.

While Luntz is scheduled to speak on a panel at the University during graduation weekend, he said that he would never return to speak after this incident, and would discourage others from speaking here.

"I can't imagine a speaker coming to Penn and being so open. I can't imagine a speaker coming to Penn and being so candid," he said. "Frankly, I think it'll have a chilling effect on whether speakers do or don't come. I wish it didn't."

He also added that he would not renew a scholarship in his father's name for students to travel to Washington, D.C.

A student had asked Luntz a question about political polarization, and Luntz had responded by blaming conservative talk radio, saying, "They get great ratings, and they drive the message, and it's really problematic." Luntz had asked for his answer to be off the record, and although the student who asked the question agreed to those terms, Aakash Abbi, the student who made the recording and provided it to Mother Jones, did not.

In an op-ed for the Daily Pennsylvanian, Abbi outlined his reasoning for making and leaking the recording, explaining that "in a room filled with scores of independent students, 'off the record' is not a Patronus charm. Luntz may have felt that he was invited to speak candidly by acclimation, but I disagreed entirely."

Frank Luntz has made a very successful career out of advising Republicans on the content of their message. He was asked one of the most important questions of the day in terms of American politics ("what is causing extreme polarization between the parties?"), and refused to speak freely. Why? Because doing so may harm his commercial interest. And this attitude is at the root of the problem. If influential GOP figures like Frank Luntz truly believe that the party's media kingmakers harm the national interest but refuse to say so for fear of backlash, they knowingly work against the spirit of open and honest debate.

In other words, the people creating the "chilling effect" on discourse are not students like Abbi, but the very people Luntz was afraid to go on the record criticizing in the first place.

Law Professor John Yoo Apparently Unaware of Federal Rules of Criminal Procedure

—By Adam Serwer

| Fri Apr. 26, 2013 9:39 AM PDT

Miller Center/Flickr

More MoJo coverage of the 2013 Boston Marathon bombings

How the FBI in Boston May Have Pursued the Wrong "Terrorist"

READ: Here Are the Federal Charges Against Boston Bombing Suspect Dzhokhar Tsarnaev

The 11 Most Mystifying Things the Tsarnaev Brothers Did

What We Know About the Tsarnaev Brothers' Guns

What These Tweets Tell Us About Dzhokhar Tsarnaev

Stunned Reactions From Former Classmates of Dzhokhar Tsarnaev

Did Boston Bombing Suspect Post Al Qaeda Prophecy on YouTube?

Boston Marathon Bombing Suspect Charged With Using WMD

Torture memo author John Yoo and others who have called for Boston marathon bombing suspect Dzhokhar Tsarnaev to be held in military detention are claiming vindication following reports that Tsarnaev stopped talking to interrogators after a judge advised him of his right to remain silent.

"Apparently the FBI interrogated the younger Tsarnaev for 16 hours," wrote torture memo author John Yoo at National Review. "And then, for reasons that are still unknown, the government read him his rights."

Yoo has never met a right he didn't want to ball up like a piece of paper and toss into a trash can in the name of national security. But despite being an attorney and professor at the prestigious University of California Berkeley School of Law, Yoo is either misleading his readers about why Tsarnaev was read his rights or unaware of a basic legal rule.

The judge appeared at the hospital because the Federal Rules of Criminal Procedure state that suspects have to be brought before "a magistrate judge, or before a state or local judicial officer" and it must be done "without unnecessary delay." The Supreme Court has held that, absent exigent circumstances or the suspect waiving the right to go before a judge—as wannabe Times Square bomber Faisal Shahzad reportedly did—a suspect has to appear before a judge within 48 hours of being apprehended. This is usually referred to in legal shorthand as "presentment," as in, "presentment before a judge."

"In practice, this means that law enforcement officers usually have no more than 48 hours to interrogate suspects without [informing them of their rights], and usually far less," explains Steve Vladeck, a law professor at American University School of Law. "Once presentment occurs, the judge, if not the interrogating officers, will advise the suspect of all of his rights."

That's what happened in this case. Tsarnaev's interrogators didn't read him his rights. Nor did the "Obama administration," as some, including Sen. Dan Coats (R-Ind.), have claimed. A judge did it. The 48-hour rule exists to prevent the government from detaining people secretly and without a suspect knowing the charges against them. Needing to interrogate a suspect is not included in the exigent circumstances that can be used to justify delaying bringing the suspect before a judge. And the government could not have legally placed Tsarnaev in military detention, either, because absent evidence of concrete operational connections between Tsarnaev and Al Qaeda or its affiliates it would not be legal to do so—and it might not be constitutional even if it were technically legal.

"This is a rule of law issue, and it's also an effectiveness issue," says Hina Shamsi, an attorney with the ACLU. "Calls to do an end-run around constitutional rights are not just wrong they prevent a fair and effective prosecution."

The feds have every reason to play this one by the book. Few things could compound the tragedy of Boston like jeopardizing Tsarnaev's prosecution because of a rush to trample his constitutional rights.

GOP Takes Another Shot at Derailing Obama's Progressive Labor Nominee

—By Adam Serwer

| Thu Apr. 25, 2013 11:25 AM PDT

Republicans have been trying for weeks to block President Barack Obama's nomination of Thomas Perez, the chief of the civil rights division at the Justice Department, to run the Labor Department. They haven't succeeded yet. But they're still at it.

Politico's Josh Gerstein reports that Democrats have delayed a vote on Perez nomination that was originally scheduled for Thursday. The Dems moved to postpone the vote after Republicans said they would use an unrelated Senate subcommittee hearing on workplace safety to feature a witness likely to be critical of Perez. Republicans wanted to call Frederick Newell, a St. Paul man whose $180 million lawsuit against the city over its failure to properly dispense federal grants meant for low-income residents was undercut by an agreement Perez helped arrange. The workplace safety hearing has now been postponed as well, with Sen. Tom Harkin (D-Iowa) accusing Republicans of trying to exploit the hearing to attack Perez and possibly derail his nomination.

As Mother Jones reported in March, in exchange for the Justice Department not joining Newell's lawsuit, St. Paul agreed last year to withdraw a fair housing case before the Supreme Court. Liberals had feared that the conservative justices on the high court would have used the St. Paul case to significantly narrow the ability of the federal government to hold financial institutions accountable for discrimination against minorities.

Republicans were frustrated by the missed opportunity to weaken the Fair Housing Act, a key civil rights law. Rep. Darrell Issa (R-Calif.) and Senator Chuck Grassley (R-Iowa) worked hard to convince GOP legislators on the Senate labor committee that Perez acted inappropriately when he helped broker that deal with St. Paul. The House oversight committee, which Issa chairs, released a report last week that accused Perez of shady behavior but failed to detail any specific legal or ethical violations. (Perez consulted with internal ethics monitors at Justice to ensure that the deal was appropriate). Republicans brought up the report during Perez' confirmation hearing last week but there were no fireworks.

Newell is angry about the St. Paul deal for a very particular reason of his own. This St. Paul small business owner spent years putting together evidence that the city of St. Paul wasn't meeting its federal grant obligations. The city entered into an agreement in 2010 with the Department of Housing and Urban Development to ensure it would meet those obligations in the future, and HUD told Mother Jones in March that St. Paul has complied so far.

Though the underlying issue that Newell sued over seems to have been resolved, he didn't get anything out of the deal. Had the lawsuit proceeded and he won, he would have pocketed between 15 and 30 percent of the sum the judge decided St. Paul owed. But it's not clear Newell would have won his case if the Justice Department had joined. The US attorneys in Minnesota thought he had a good case, yet the experts in the civil division believed he did not. When the Justice Department declined to join Newell's lawsuit, it meant that the case would most likely be dismissed, and it was.

So the problem was taken care of, but Newell lost his chance to collect a lot of money. Given all the hard work he put in, it's understandable he's ticked off at Perez. But the fact that Newell didn't get his money doesn't mean Perez did anything improper.