Sunday, July 4, 2004

Liberty is still a work in progress


On Independence Day 2004 we are still defining and refining our rights and responsibilities under the Constitution, and for confirmation you need only look to decisions from the Supreme Court's just-completed term.

By far the court's most historic ruling was its rebuke to the Bush administration in denying that the president has vast wartime powers to hold terror suspects essentially incommunicado and detain them indefinitely as "enemy combatants."

In the case of American citizen Yaser Hamdi, Justice Sandra Day O'Connor wrote the main opinion that the suspect held in a U.S. military jail should be given the opportunity to rebut the government's case against him before a "neutral party."

In a ringing post-9-11 correction to U.S. detention policies in the war on terror, O'Connor wrote: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Other decisions reinforce the idea that our great American experiment in liberty is still very much a work in progress.

The justices rejected, at least for the time being, an attempt to remove the words "under God" from the Pledge of Allegiance.

The Supreme Court decided four cases involving its 1966 Miranda v. Arizona decision requiring police to warn suspects that they have the right to remain silent and have an attorney present when being questioned.

In Missouri v. Seibert, the justices ruled police cannot intentionally skirt the Miranda rule by questioning a suspect twice - the first time to extract a confession before reading the warning. Some double interviews may be permitted if police can show they did not intend to short-circuit the Miranda rule.

In U.S. v. Patane, the court said failure to issue the Miranda warning did not necessarily make statements or evidence inadmissible in court. In the Patane case, the suspect told officers they didn't have to read him a Miranda warning because he already knew his rights.

In Yarborough v. Alvarado, the court ruled juveniles do not have to be granted special treatment during police questioning because of their age.

In Fellers v. U.S., the justices ruled that suspects who have been formally indicted on criminal charges must be given their Miranda warnings before police begin any questioning.

The tension between individual rights and government power also continues to play out in the lower courts. The U.S. Court of Appeals for the 1st Circuit in Massachusetts issued the startling ruling that an e-mail service company has the right to copy and read any message bound for its customers. Other rulings have given employers broad rights to access e-mail stored in their systems. Privacy advocates are outraged, and the dissenting judge warned that the ruling would allow law enforcement officers to access recipients' e-mail with a simple search warrant instead of a wiretap order

No one ever claimed on July 4, or any other day, that our liberties were absolute. It's up to all of us to see that our rights and government powers are kept in reasonable balance.

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