‘If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?” Sen. Lindsey Graham got a lot of mileage out of that question, which stumped Attorney General Eric Holder during a Senate hearing last November. The South Carolina Republican also won plaudits from national-security conservatives for his reaction to Holder’s indecision. “If you’re going to prosecute anybody in civilian court,” he lectured, “our law is clear that the moment custodial interrogation occurs . . . the criminal defendant is entitled to a lawyer and to be informed of their right to remain silent.” The senator thundered that the attorney general was “criminalizing the war” and “confusing the people fighting this war.”
Holder’s record of touting civilian judicial processes as the most effective form of counterterrorism strongly suggests that he does, in fact, believe that enemy combatants should be treated like ordinary criminal defendants — and that means Miranda warnings. But he shrinks from telling us that. Saying it aloud would anger most Americans, who rightly think it is dangerously foolish to criminalize a war, to turn the battlefield into a crime scene governed by peacetime law-enforcement rules.
Graham is fortunate that Holder lacks not only the courage of his convictions but also the foresight to prepare adequately for congressional testimony. If he’d done his homework, the attorney general might have answered, “Senator, let’s talk about which one of us has criminalized the war and confused the troops. You’re the one who convinced Congress to give captured terrorists Fifth Amendment rights.”
That is what Senator Graham did in 2005. Along with Sen. John McCain and other grandstanding Republicans, he gave cover to the Left’s “torture” demagoguery by spearheading enactment of the McCain Amendment. Under the rubric of “cruel, inhuman, and degrading treatment,” that provision vested alien enemies held overseas with constitutional rights against coercive interrogation. Holder could have explained that the Supreme Court, in its 2000 Dickerson decision, departed from 30 years of its own precedents to rule that the Fifth Amendment right against coercive questioning now includes Miranda warnings. The McCain Amendment proponents were well aware of that fact at the time they pressed ahead — some of us had warned them. Consequently, while giving Miranda warnings to bin Laden would be insane, it would also be a straightforward application of a law that Senator Graham championed.
It is worth revisiting the McCain Amendment: Almost certainly, it has just bitten us again.
All week, people have asked, “How on earth could a federal district court have ordered the release of Mohamedou Slahi, one of the 9/11 plotters?” We cannot be sure of Judge James Robertson’s rationale, because his opinion is still classified. Nevertheless, it is extremely likely that so-called enhanced interrogation tactics, the target of the McCain Amendment, figured prominently. Slahi was subjected to questioning that crossed the line into intimidation. He was told that if he refused to tell us what he knew about al-Qaeda he would disappear without a trace and his mother would be jailed.
Those tactics violated then-existing protocols, but it would be absurd to call them “torture.” But McCain, Graham, and others fed the smear that the Bush administration had set up a systematic regimen of prisoner abuse, and the result was the McCain Amendment — two features of which undoubtedly contributed to the decision to spring Slahi.
OVEREMPHASIZING INTERROGATION
The first was the law’s overemphasis on interrogation practices. In their zeal to show the world how virtuous they are, the amendment’s proponents included a provision, Section 1005, requiring in every detainee hearing an assessment of whether any statements were “obtained as a result of coercion” That is, the hearing to determine whether a detainee is an enemy combatant is as much about the conduct of American officials as it is about the conduct of the enemy.
That makes no sense. To be sure, if the government is relying on statements made by the detainee to prove that he is an enemy combatant, it is important to gauge whether those statements are products of coercion. But most of the time, the government should not have to rely on detainees’ statements. Before a detainee is ever asked a single question, our military and intelligence services have to have reasons to capture and hold him. Detaining enemy combatants under the laws of war is not the same as trying them for war crimes. We don’t need proof beyond a reasonable doubt that the detainee committed some particular atrocity. In our history, we have held millions of war prisoners without trial. To validate such detention, all that is needed is a rational basis to believe that the detainee is working with the enemy.
If Congress wants to probe the mistreatment of prisoners of war, it can hold hearings and promulgate standards — as it has done. But whether a prisoner was abused has little or nothing to do with whether we are entitled to detain him indefinitely as an enemy operative under the laws of war. There is no reason to turn combatant-detention hearings into trials of the interrogators, and there are far better ways for Congress to conduct oversight.
To draw a contrast: If police obtain a confession unlawfully, a civilian prosecutor can take the issue out of the case. The prosecution advises the court that it will not offer the confession in evidence or rely on it in any way. If the prosecution does not use the confession, it makes no difference that an arrestee has been abused to get it. The question becomes whether the government can meet its burden of proof with other evidence; interrogation tactics are beside the point. But that is not how it works with enemy combatants. Under the McCain Amendment, there are no exceptions: The statute calls for an inquiry into coercion in every case.
To be fair to Sens. Graham, McCain, and the rest, they did not intend to have district judges use the McCain Amendment to accept prisoner-abuse claims as a rationale for releasing terrorists. Quite the opposite: The Detainee Treatment Act, in which the McCain Amendment was incorporated, was an effort to cut the district courts entirely out of combatant-detention matters. Predictably, though, the Supreme Court’s liberal bloc ran roughshod over this jurisdiction-stripping provision in its 2006 Hamdan ruling. And two years later, in the Boumediene case, the sharply divided Court held that the detainees have a constitutional right to challenge their military detention before judges such as Robertson.
CONSTITUTIONAL RIGHTS FOR THE ENEMY
That gets us to the second disaster traceable to the McCain Amendment. When the alien detainees held outside the U.S. argued in Boumediene that they were entitled to American constitutional rights, the claim might have been laughable — if the McCain Amendment hadn’t already led us across that legal Rubicon.
The amendment endowed alien enemy combatants captured and held overseas with Fifth, Eighth, and Fourteenth Amendment rights against any treatment that was arguably “cruel, inhuman, or degrading.” Obviously, coercive interrogation was the inspiration for this act. But extending constitutional rights to aliens outside the United States was an unprecedented step — one that our government had for many years taken pains to avoid. For instance, when the U.N. Convention Against Torture and Cruel, Inhuman, and Degrading Treatment was ratified in 1994, the Senate was careful to preserve the principle that U.S. constitutional rights do not extend to aliens (much less to hostile aliens) outside our borders.
The McCain Amendment did not just lay the groundwork for the claim that enemy combatants should get Miranda warnings. The senators’ decision to grant our enemies constitutional rights laid the groundwork for the Supreme Court to do the same on a broader and more destructive scale. And that is just what the justices did.
To connect the dots, the McCain Amendment made Boumediene more likely, and Boumediene, in turn, enabled Mohamedou Slahi to file a habeas corpus petition in federal district court. Judge Robertson would otherwise have had no jurisdiction to meddle in detention matters.
For years, the American people have needed Congress to do its job: Prescribe procedures governing detainee cases so that judges can’t make up their own rules and invent reasons to release terrorists. Instead, with the McCain Amendment, what Congress has done is prescribe rules that help terrorists win in court. That wasn’t our lawmakers’ intention, but it was an entirely foreseeable result of their holier-than-thou preening. We continue to live with the fallout.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).