(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.
CONTINUED 1 2 3 Next > 
