The public debate over Miranda warnings for the surviving Boston bomber has been conducted in a cloud of overwrought and often confused rhetoric. So let’s be clear about a few things:
First, when Senator Graham and others speak of treating the bomber as an “enemy combatant,” we are not speaking of trying him with a military commission (for better or worse, it’s now unlawful to try an American citizen with a military commission). Instead, the goal is to question the bomber with trained interrogators to gain potential actionable intelligence, not for the purposes of building the federal criminal case. Indeed, the intelligence gained by this questioning would not be admissible in any criminal proceeding, and prosecutors would build the federal case independently of the intelligence interrogation.
Second, the act of designating an American citizen an “enemy combatant” isn’t a violation of constitutional norms but consistent with longstanding (and re-affirmed) constitutional doctrine. I’ve quoted Ex Parte Quirin before, but it merits repeating:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague convention and the law of war. [Emphasis added]
Third, the president has the initial authority to declare whether the bomber has “belligerent” status — even when such belligerents are Americans. See, for example, the Civil War–era Prize Cases:
Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.
Fourth, if the president designates the bomber as an enemy combatant (again, for initial detention and interrogation, not trial and ultimate disposition), the bomber would still have the right to file a habeas petition and receive judicial review of the president’s decision.
The process that Senator Graham drescribes follows precedent, conforms with our constitutional traditions, protects the public, and it safeguards the bomber’s fundamental rights. At no point would he be beyond the scope of judicial review, he would not be tried by military commission, and he would not be compelled to incriminate himself.
There are many politicians and commentators, however, who want to place our ability to gather intelligence directly within the whim of a terrorist and his lawyer. In other words, they are demanding protection beyond that required by the words of the Fifth Amendment itself, which states that no person may be “compelled in any criminal case to be a witness against himself” (emphasis added). Senator Graham and others are not asking that the bomber be a witness against himself in a criminal case, merely that he be thoroughly questioned by trained interrogators until we’re confident that we’ve gained all the intelligence we can, then try him in federal court — using evidence gained through the civilian investigation, not the military interrogation.
This is pure common sense, and — as I said — it protects the bomber’s rights, and it protects the public. But apparently even that is too much for some, who, while impressing no one but themselves (the jihadists aren’t impressed with our empty moralizing, they laugh at our stupidity), are choosing to supplement their willful blindness with willful ignorance.