Political MoJo

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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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.

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Flames light up the sky as a Marine launches a PL-87 Stinger Missile at a flying drone over Onslow Beach on Marine Corps Base Camp Lejeune, N.C., April 16, 2013. U.S. Marine Corps photo by Lance Cpl. Cory D. Polom.

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"Call of Duty: Black Ops 2" would be restricted under Christie's proposed law.

New Jersey Gov. Chris Christie has fashioned himself as a GOP maverick of late, upsetting people in his own party almost as often as political opponents. From praising President Obama's response to Hurricane Sandy last year, to seeking a ban on the .50 caliber Barrett rifle more recently, he keeps managing to ruffle Republicans' feathers.

His push to restrict violent video games, however, part of his plan to deal with gun violence, is likely to please the right. Christie wants to require parental consent in New Jersey in order for minors to purchase "Mature" rated video games. The idea aligns with the NRA's own suggestions for curbing school shootings and has broad appeal. It's not actually a ban, but rather another layer of regulation. 

"This is just common sense," the governor said of his plan, "and means that parents and legal guardians are actively engaged and aware of the kinds of games their kids are buying and renting." Christie's reasoning is actually pretty sound—even if his legal thinking isn't. (More on that in a minute.)

When I've written about violence in video games in the past, I've argued that the most important thing a parent can do is be actively engaged in what their kids are playing. (That goes for any kind of media consumption.) Play games with your kids, and make sure the content they're zapping into their impressionable young minds is something you approve of. I don't think most kids will be transformed into violent monsters by video games—and to date, there is no solid research indicating that's a serious possibility—but that doesn't mean each game out there is appropriate for every kid.

The problem with Christie's plan is that it runs afoul of the right to free speech; attempts to ban violent video games or restrict their sale have already been overturned by the Supreme Court.

Moreover, the video game industry has actually done a vastly improved job at self-regulating over the last decade. Even though M-rated games aren't backed by laws limiting their sale to minors, that doesn't mean it's easy for children to buy these games. A recent report from the Federal Trade Commission found that only 13 percent of minors were able to purchase M-rated titles in 2012, dramatically down over the last 12 years. The FTC sent undercover "mystery shoppers" between the ages of 13 and 16 into retail shops to gather this data. By comparison, the FTC found that minors were able to purchase CDs with explicit content nearly half of the time, and buy R-rated movie tickets nearly a quarter of the time.

FTC

In other words, the video game industry and the retailers who sell video games are leading the pack, effectively keeping minors from buying M-rated titles like Call of Duty and Grand Theft Auto. Most of the kids with these games get them from their parents, legal guardians, or other people over the age of 18.

The real trick is ensuring that parents are actually, well, parenting—overseeing or playing the games with their kids in the confines of their own homes, or in the homes of their friends. This is beyond the scope of government regulation.

Christie may have great intentions, but his legislation will almost certainly not hold up in court, and even if it did it's unlikely that we'd see a significant change in video game sales to minors. And it requires another leap from there to assume that stricter regulations on video games would have any impact on real world violence, including school shootings. It would be better for Christie and other leaders to continue pushing for better gun control laws—even though that may allow their opponents to score political points against them.

Speaking of gun control and "political suicide," I'll leave you with this hilarious yet deeply troubling segment from The Daily Show's John Oliver:

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