Faisal Shazhad and The Right (not) to Have Rights

Sam Chambers
Johns Hopkins University

The arrest last week of Faisal Shazhad, a US citizen, for attempting to detonate a car bomb in Times Square, has pushed the debate over “Miranda Rights” and citizenship status to a whole new level. Indeed, the current debate may reflect a new historical stage in the problem of what Hannah Arendt called, “the right to have rights.” Where Arendt located the tragedy of refugees and other stateless people who lacked so-called universal human rights precisely in the fact that they lacked membership in the nation-state that would grant them that very right to have rights, today we see the prospect of a new, modern, form of political exile, wherein the nation-state simultaneously creates and invokes its own right not to recognize the rights of its citizens (and others).

For issues such as this, wherein a very important political event (a failed act of terrorism on US soil) is linked up with deep and fundamental questions about political and philosophical principles (the question of rights), the media loves it when they can get those well-known figures who are putatively located in the center of the political spectrum (so-called “moderates) to stake out a potentially polarizing position. In this case, the media darlings came through.
First, there was John McCain, leading the charge of pundits like Rush Limbaugh (of course) and politicians to argue that Shazhad should not have been read his Miranda rights. Despite his obvious abandonment – in the face of the growth of the tea-party movement (and their numerous electoral successes) – of the so-called “maverick” status, John McCain is still a media favorite. Because when McCain gives a quote on a political event such as this one, he can, almost all by himself, mark the position as another radically polarizing one, and he can do so by merely taking up the position on the right. In this case, McCain delivered once again, with this quote: “Don’t give this guy his Miranda rights until we find out what it’s all about.” It didn’t take long, of course, until the “other side” spoke and pointed out, to McCain and others, that as Shazhad was an American citizen arrested in New York City, not an “enemy combatant” and citizen of a foreign country who was captured on foreign and taken to Gitmo.

But to that problem, Joseph Lieberman has proposed an answer: take away his (their) citizenship status. Lieberman has proposed a broadly “bi-partisan” bill – co-sponsored by Scott Brown (R Mass) and tentatively supported by Nancy Pelosi and Hillary Clinton along with just about every Republican who has been asked about it – that would strip a US citizen of his or her citizenship rights for either joining a terrorist organization or providing one with “material support” (anything from supplying weapons and intel to writing a check to a charity that turns out to be a terrorist front). Commentators on the left, like David Cole and Joan Scott, have already done a thorough job of showing how utterly and completely untenable this bill proves to be from a legal or constitutional perspective. My interest here is in something other than the constitutional questions or the politics of demagoguery; I’m concerned with the distinct political logic that one can see traced out in the responses of McCain and Lieberman.

Let’s start with a closer look at the McCain quote: “don’t give him his Miranda rights.” This formulation reflects the current state of the political debate over Miranda rights, where it appears to be a question of whether or not a suspect will be granted a set of rights. Of course, this is not actually the case, and, in fact, takes us a great distance from the constitutional question of “Mirandazing” a suspect. The 1966 Supreme Court case of Miranda v. Arizona does not create a new set of rights; those rights are already written into the Fifth and Sixth Amendments of the US Constitution. Miranda v. Arizona creates, instead, a new set of procedures, that, on the one hand, can be said to protect and uphold those rights, but, on the other hand, and perhaps more importantly, function to ensure successful criminal prosecution. We have all heard the Miranda script read a thousand times on television, but it seems worth noting that those cops are not so much protecting the suspect they have just cuffed but rather making sure that the case they build against him or her will not be tossed out.

But all of this means that it is the Fifth and Sixth Amendments that give Shazhad, any other US citizen (and, according to another body of Court precedents, non citizens as well, but I will put this issue to the side for now) his right to remain silent and have an attorney represent him. So McCain and others are simply wrong to think the question before us today is one of “giving him” rights or not; he already has those rights. The question is about whether we should inform him of those rights so that he can then explicitly waive them when he speaks with his interrogators. Of course, there is already a “public safety exception” to the Miranda warning requirements, and Attorney General Eric Holder has now said that he is looking into possibly modifying Miranda procedures under that exception in order to deal with terrorist suspects.

However, no changes to Miranda processes will alter the fact that US citizens still have due process rights, rights granted to them by the Constitution and not by anything an arresting officer says or does not say. Thus, Holder’s comments will surely not be enough for Joe Lieberman. Lieberman and McCain are both on the same page to the extent that they would like terrorist suspects to have no rights. Lieberman’s bill has the advantage (within the terms of his own argument) of recognizing that those rights can only be taken away from a suspect if he or she is stripped of citizenship.

Thus, Lieberman’s logic continues McCain’s, and runs as follows: a suspect “found to be involved with a terrorist organization…would be deprived of their [sic] citizenship rights.” What Lieberman means by “citizenship rights” proves to be slightly complex, since the Bill itself would actually strip a suspect of his or her US citizenship, and it would do so precisely as a means to the end of taking away that suspect’s Constitutional due process rights. Let’s unpack this logic: if you are a terrorist suspect then Lieberman et al do not want you to have due process rights, but to take away those rights they have to take away your citizenship. But you are being stripped of your  citizenship precisely because of your suspected terrorist ties.

So what are your rights in the process that would conclude by stripping you of your rights? By definition, it would appear, you have none. To recognize your rights at any point along with way would stop the process of stripping you of your rights, and therefore the Lieberman Bill could only function in practice if it grounded itself on “the right not to have rights.” That is, the principle of taking away someone’s citizenship has to be self-grounded, i.e. ungrounded. The process of taking away someone’s very ground for rights (citizenship) cannot be a rights-based or rights-governed process; it has to be an arbitrary exercise of police force or political will. It must rest, fundamentally, on a denial of the right to have rights.

It is probably for just this reason that the US Supreme Court over-ruled earlier mid-twentieth century citizenship laws with the effect that, today, one can only lose one’s citizenship if one expressly and intentionally relinquishes it. That is, the Supreme Court has said that even fighting for an enemy army does not amount to loss of citizenship unless one explicitly renounces one’s US citizenship. As David Cole says, “Since those decisions, no Americans have lost their citizenship except where they have chosen freely and purposefully to give it up.” I cannot imagine that either Lieberman or McCain would show much support of this legacy of the Warren court. Nevertheless, the Warren court’s position proves to be politically and philosophically cogent. To make citizenship status a thing that can be taken away because one is suspected of a crime (even the crime of terrorism or treason), is to make the most fundamental rights utterly non-grounded, non-fundamental.
Thus it is that the McCain-Lieberman logic (tacitly) and the Lieberman-sponsored bill (more explicitly) would bring about what I’ve called, by following and modifying Arendt, “the right not to have rights.” It would subject every American to an ever-present (no matter how statistically unlikely) threat of statelessness. “We are all refugees now.”