Last week the Senate conducted a heated debate on the future of our military-detainee policy. But the tragic thing about the detainee debate is the fact that there is one at all. In the past few years, Congress has been forced to enter the fray and use all political means necessary to prevent the civilianization of our detainee policy. Actions such as the release of Guantanamo detainees in foreign countries, the use of law-enforcement mechanisms like Miranda warnings before questioning terror detainees, and the trial of unlawful combatants in civilian courts in the U.S. are all part and parcel of a larger failure of detainee policy in the Obama administration.
The basic debate is clear. Our fight against Islamic terrorism has required us to capture jihadists waging (or seeking to wage) war against the United States in two active combat theaters, along with other locations around the world. When we capture a suspected or known terrorist, do we consider him a criminal suspect — subject to our domestic laws, and entitled to the same constitutional protections as an American citizen? Or is he an unlawful enemy combatant, a battlefield capture deserving the same rights and treatment as millions of wartime captures before him?
Upon taking office, President Obama and his administration registered their preference for the former, and sought a return to the way we treated terrorists captured during the Clinton administration — a time when our government operated under the pretext that acts of terrorism, including sworn acts of war resulting in death and destruction of U.S. forces and assets, were domestic in nature, and therefore deserving of criminal legal treatment. This adoption of a criminal-justice orientation displayed a stunning lack of forethought and a failure to fully contemplate the consequences of reversing the Bush administration’s policy of treating unlawful enemy combatants within a law-of-war model. Tellingly, under Obama, detainee policy was spearheaded not by the Defense Department, which is dedicated to protecting the nation from attacks, but by the Justice Department, which is responsible for ensuring the enforcement of domestic laws.
The Obama reversal was championed by Attorney General Eric Holder, whose insistence on bringing Guantanamo detainees to American soil for civilian legal trials drew broad condemnation from the American pubic. While the idea of a civilian trial for captured terrorists in New York City prompted understandable concerns, the more disturbing problem was Holder’s apparent lack of comprehension regarding the stakes of the decision to shift our capture posture away from the law-of-war model. In a hearing before the Senate Judiciary Committee on Nov. 18, 2009, Sen. Lindsey Graham, a colonel in the USAF Reserves, asked Holder two significant questions. First: “Can you give me a case in U.S. history where an enemy combatant caught on a battlefield was given a civilian trial?” Holder’s answer: “I would have to look at that.” Second: “If we captured Bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?” Holder responded, “That all depends.”
Under a war-capture model, persons captured on a battlefield and determined to be enemy combatants are held until the end of hostilities. During this time, intelligence-gathering interrogations are permitted. Miranda rights, which were judicially created by the Supreme Court in 1966, have no application in this war context. The primary job of a soldier is to defeat the enemy, not collect evidence and give warnings. Forcing U.S. service members to perform CSI-style evidence collection in the middle of a war zone would hinder the mission and needlessly expose them to additional danger.