How War Fighting Became Law Enforcement by Andrew C. McCarthy on National Review Online

How War Fighting Became Law Enforcement by Andrew C. McCarthy on National Review Online

(Note: In Part I of this article, Andrew C. McCarthy showed how Miranda warnings grew from a procedural safeguard into an inviolable constitutional right. In Part II, he explained how judges and the Justice Department expanded this right to the point where it applied to terrorists captured abroad. Here, in the final part, he describes how the odd couple of John McCain and Barack Obama have put the nation in great danger by turning the War on Terror into something resembling a police investigation.)


Two months after the 1998 bombers of the U.S. embassy in Kenya were convicted, al-Qaeda destroyed the Twin Towers, struck the Pentagon, and was foiled by the martyred patriots of Flight 93 in an attempt to attack the Capitol or the White House. Unlike its predecessor, the Bush administration deemed the attack an act of war, as did Congress, which overwhelmingly authorized the use of military force a week later. American officials were dispatched to foreign lands to conduct military and intelligence operations, not criminal investigations. Prosecution, which in the eight previous years had managed to neutralize fewer than three dozen jihadists, most of them low-level, was aptly judged to have been a provocatively weak response to a transnational terrorist network with global aims and frightful capabilities.

The name of the game was now intelligence and prevention, not evidence and prosecution. Radical Islam had to be stopped from attacking — there could be no trials of suicide terrorists after they’d struck, and even if there could, they’d be a grossly inadequate measure. After 9/11, a premium was put on obtaining information for purposes of mapping the terror network, uncovering ongoing plots, and acquiring operational intelligence that would be of use to our military and covert intelligence forces.

Miranda was separate from all of this. The Miranda rule is a device to ensure the constitutional integrity of confession evidence for use at trial. It has no place in situations where trial either is not contemplated or, if contemplated, is at best a third- or fourth-tier consideration, subordinate to national security, force security, and the preservation of foreign intelligence sources and national-defense secrets. Miranda is designed for the criminal-justice process, in which we impose the burden of proof on the government, the suspect is presumed innocent, we arguably do not want him to implicate himself unless he sees it as in his interest to do so, and we would rather see the government lose than see an innocent person convicted. To the contrary, when the nation goes to war, our primary concern is the national interest, not the suspect’s interest; we don’t presume a detained combatant innocent, because it is not our purpose to establish his guilt; the government’s burden is to prosecute the war, not the war prisoners; and we see it as imperative that the government win — to the point that we sacrifice our blood and treasure and are resigned to the inevitability of horrific collateral casualties and damage.

In the post-9/11 strategy, then, Miranda had no place. Interrogation was conducted by military and intelligence personnel whose objective was to obtain intelligence, not derive prosecutable evidence. And the emphasis on interrogation has been remarkably effective. For eight years, despite intense efforts to reprise 9/11, al-Qaeda has not carried out a terrorist attack in the United States.

Nevertheless, scandal erupted in 2004, with revelations about prisoner abuse at Abu Ghraib and, later, the CIA’s top-secret enhanced-interrogation program for a small number of high-level al-Qaeda detainees. Amid growing public unrest over the war in Iraq, the interrogations controversy provided ample opportunity for demagoguery. Chief among the grandstanders was Sen. John McCain, then planning a 2008 run for the White House. A Vietnam War hero who had famously endured a years-long ordeal of captivity, isolation, and torture, McCain railed at the harsh treatment of prisoners in U.S. custody. Echoed by allies like Sens. Ted Kennedy (who likened the U.S. administration of Iraq to Saddam Hussein’s) and Dick Durbin (who compared American soldiers to thugs who had served the Nazis, the Soviets, and Pol Pot), McCain contributed mightily to the Left’s smear that the Bush administration had instituted a systematic torture regime.

In 2005, capitalizing on the atmosphere he had stoked, McCain proposed legislation (the “McCain Amendment”) that would vest every person detained by American officials, anywhere in the world, with rights under the Fifth Amendment (as well as the Eighth and Fourteenth). I was among a small number of naysayers who vigorously opposed the McCain Amendment (see, e.g., here, here, here, and here). In the climate of the times, we were slandered as torturemongers for our trouble. But while I continue to believe it would be foolish to take off the table coercive interrogation tactics that do not meet the strict legal definition of torture, that was not the only reason for opposing the McCain Amendment. A principal reason was Dickerson, particularly as its Miranda requirement was construed by Judge Sand.


McCain explicitly included the Fifth Amendment in his legislation because it addresses his target, coercive interrogation. As we’ve seen, in Dickerson, the Supreme Court held that Miranda was now considered part of the Fifth Amendment’s core. In the al-Owhali case, Judge Sand ruled that Miranda imposes daunting burdens on American agents overseas — burdens far more challenging than the rote reading of an advice-of-rights card that typically happens in domestic policing. With the Supreme Court, beginning in 2004, imposing more and more criminal-justice procedure on the battlefield, the McCain Amendment would almost certainly be used by courts or a Democratic administration to impose Miranda protocols not just on FBI agents conducting criminal investigations (which is what it’s meant for) in foreign countries, but on U.S. military and intelligence agents conducting combat and covert operations. That would be the death knell not of the “torture” over which McCain obsessed but of any effective intelligence collection.

The McCain Amendment passed by a 90–9 margin in the Senate, with all but nine Republicans joining the unanimous Democrats. It became law — incorporated in the Detainee Treatment Act of 2005 — with the signature of President Bush.

OBAMA GOES TO COURT
This is the background against which we must consider Steve Hayes’s report that the Obama administration has orchestrated the world’s first Mirandized war. A war against a terror network that specializes in sneak mass-murder attacks, in which intelligence is at an unprecedented premium, is a strange setting for inaugurating a practice in which detainees are told they needn’t speak to you and have a right to the assistance of an attorney underwritten by the American taxpayers they’ve been trying to kill.


But expect President Obama to gaze at his teleprompter and assure you that he is not inaugurating that practice. It was President Clinton, he’ll quite rightly tell you, whose (Reno/Holder) Justice Department first started Mirandizing captured terrorists overseas. He’ll elaborate that it was President Bush, prompted by Senator McCain, who extended Fifth Amendment rights to enemy aliens and imposed on our soldiers and intelligence agents the duty to safeguard those rights. And this, he’ll insist, was just a recognition of the “rule of law,” because after all, it was the Supreme Court that developed Miranda and (relying on the arguments of the Reno/Holder Justice Department) made it part and parcel of the Fifth Amendment. Why are you blaming me, Obama will shrewdly ask, for a lawful, long-established policy that I am merely continuing?

It will all be very clever. But it will be wrong. Contrary to what his spokesmen have said, Obama is not simply continuing the policy of previous administrations; he is vastly expanding it, to the point where it becomes a serious threat to our nation’s security.

The Obama administration’s protestations ring false from the start. The very notion of advising enemy combatants of Miranda rights seems so absurd that, as The Weekly Standard’s John McCormack reports, President Obama himself poked fun at it only three months ago (“Now, do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not.”). And that was after, as a candidate, he had mocked Gov. Sarah Palin for arguing that he intended to give terrorists Miranda protections.

This is not about Miranda; it’s about how we view terrorism.

Miranda has been applied to some alien terrorists captured overseas for eleven years, but only in the context of criminal investigations. It arose in the embassy-bombing case — and nearly cost that case — because the Clinton administration chose to treat that attack as a crime and the captured prisoners as criminal defendants. Had President Clinton adopted the Bush approach and proceeded with a military response — not a flurry of cruise missiles but a real war — he’d have had robust congressional support, Miranda would never have been an issue, al-Qaeda would have been decimated, and Pres. Al Gore would never have had a 9/11 to deal with.

The McCain Amendment is a debacle because it theoretically extends Miranda to enemy combatants. That is a trickier problem, yet not an insurmountable one, for two reasons. First, the courts have held that a Fifth Amendment violation — and therefore a Miranda violation — occurs not during the actual questioning but when the prosecution attempts to use the statement in court. There is thus at least a plausible argument that if you do not intend to bring a detainee to court — if you are just questioning him to gather intelligence — you do not need to give him Miranda rights.

Concededly, this is dicey. The concept that the conduct giving rise to the violation (the coercion used during the questioning) is somehow not really the violation is a legal fiction, and an unattractive one. But it has been enough to justify withholding Miranda warnings in most cases where high-value suspects have been captured. Still, it would help if the McCain Amendment were repealed, or at least amended to make clear that it was not Congress’s intention to impose the Miranda component of the Fifth Amendment on U.S. officials overseas.

Second, in upholding al-Owhali’s conviction earlier this year, a panel of the Second Circuit Court of Appeals issued a superb opinion that clipped the worst excesses of Judge Sand’s nine-year-old ruling. Federal agents, it instructs, are merely required to communicate accurate information about a suspect’s rights; it is not their job to master foreign law, intercede with other countries on behalf of captured terrorists, or browbeat nations whose cooperation we need into adopting American right-to-counsel rules.

Perhaps more important, the Second Circuit construed Dickerson as glossing the Fifth Amendment with a commonsense Miranda, one that is flexible in its application to varying circumstances. The panel observed that Miranda itself disavowed “creat[ing] a constitutional straitjacket” and that Rehnquist’s opinion for the Dickerson Court admonished that “no constitutional rule is immutable.” Indeed, on this point, the panel noted that the Supreme Court had long ago dispensed with any need to comply with Miranda “in a situation posing a threat to public safety.” The public-safety exception was carved out by the Supreme Court in 1984 (in New York v. Quarles) in a peacetime domestic police emergency. A fortiori, there should be no Miranda requirement at all in battlefield circumstances or in connection with national-security emergencies.

But here, at last, is the point. The problem is not just that Obama wants to extend Miranda to nearly all captured terrorists. That’s just a symptom. The problem is that he wants to treat international terrorists as suspects in a law-enforcement matter rather than as wartime enemies.

Despite the McCain Amendment, the requirement of Miranda in warfare is something we have been navigating around fairly well. The recent Second Circuit ruling provides further reason for optimism that we can continue doing so — as long as we remain in war mode. But if we return to law-enforcement mode under the Obama FBI’s new “Global Justice” initiative, then we are back to September 10 — to the embassy-bombing approach to counterterrorism, in which completed terrorist attacks, rather than interrupted terrorist plots, await us.

There’s no point making this into a controversy about Miranda. After all, if we go the law-enforcement route, there is no question that Miranda applies. The issue is not Miranda, but whether we should view terrorists like Khalid Sheikh Mohammed as mere criminals. If so, then obviously we must follow criminal protocols, and there is no question that Miranda applies. We must tell them they don’t have to talk to us, and that we will get them a free lawyer — who will promptly advise them to clam up. We must also accept that we will no longer get the timely intelligence that thwarts attacks. We must resign ourselves to more dead Americans.

President Obama and Attorney General Holder are fond of labeling as a “false choice” the reality that, in national exigencies, we have to decide whether to trim some protections for enemy combatants in order to promote security. That’s no false choice. It’s a real choice, with the lives of our citizens hanging in the balance. If you want to defeat this enemy and prevent these attacks, you go to war and you get intelligence. If you are content to live with this enemy and endure its attacks, you go to court and you get Miranda. Obama has decided to go to court.