(Note: In the first part of this article, Andrew C. McCarthy explained how Dickerson v. United States changed Miranda warnings from a tool for protecting rights into a right in itself, disregarding an act of Congress. Here he shows how those warnings, intended for use in domestic law enforcement, came to be part of the fight against global terrorism, with unfortunate consequences.)

At the murky crossroads between criminal enforcement and national defense, international terrorism has brought to the fore Dickerson’s unintended, but easily foreseeable, consequences. On Aug. 7, 1998, al-Qaeda jihadists bombed the United States embassies in Kenya and Tanzania, murdering at least 224 people. The bombings were treated as criminal offenses rather than acts of war, which meant conducting crime-scene investigations in Nairobi and Dar es Salaam. But in these cases, unlike the New York–focused investigation of radical Islam’s 1993 World Trade Center bombing, federal agents could operate only at the indulgence of foreign sovereigns. Their American protocols would have to be adapted to local conditions.

Very quickly after the Nairobi bombing, FBI agents and their Kenyan counterparts picked up and questioned Mohamed Rasheed Daoud al-Owhali, a Saudi national pretending to be a Yemeni of a different name. Though the lead that had prompted their desire to question al–Owhali was only one of hundreds, agents became increasingly convinced — over two weeks of intermittent questioning — that he was a college-educated al-Qaeda operative, well-schooled in counter-interrogation techniques, who was complicit in the atrocity. In fact, he had been the main bomber, helping drive the explosives-laden truck to the detonation site at the embassy. Finally he confessed, and Kenya released him to the United States for trial. Without the confession, it is highly unlikely there would have been a case against him.

Once in New York, he moved to suppress his confession. I was one of the government lawyers who opposed his motion. Leonard B. Sand, the trial judge, who had been appointed by Jimmy Carter in 1978, is deservedly a highly respected jurist, but of an unmistakably progressive bent. In proceedings that started in January 2001, Judge Sand initially granted the suppression motion on the ground that al–Owhali had not been given Miranda warnings The decision was outrageous on multiple levels.

Al–Owhali was an alien whose only connection with our country was to make war on it. His claim to any Fifth Amendment protection should have been preposterous. But it wasn’t — because he was being treated as a criminal defendant, not an enemy combatant. The Supreme Court has held that even illegal aliens and foreigners brought into the U.S. justice system against their will have Fifth Amendment due-process rights. It is thus virtually certain that such aliens also enjoy the Fifth Amendment right against self-incrimination and the introduction in court of coerced statements (the government never disputes this proposition, so courts have not had to rule on it conclusively).

That raises the question: What constitutes coercion? If you look at just the Fifth Amendment, a confession should be barred only if it was given against the suspect’s will — and thus U.S. courts have admitted statements obtained by foreign officials, despite their non-compliance with Miranda, as long as the statements were made voluntarily. This recognized Miranda exception does not apply to U.S. agents, even when operating abroad. As we’ve seen, the whole point of Miranda was to regulate U.S. agents. But what happens when agents are operating in a place like Kenya, where the accused are not always entitled to counsel at public expense during interrogations?

The agents investigating the embassy bombing attempted to resolve this dilemma in good faith by adjusting Miranda to the circumstances. They actually gave al–Owhali Miranda warnings. As the Obama administration will no doubt point out to its critics, the FBI — eleven years before Obama’s presidency — was routinely giving Miranda warnings to all potential suspects in Kenya and Tanzania (among other countries).

But here’s the key point: It was modified Miranda. Suspects were told they had a right to remain silent and that, if they chose to speak, whatever they said could be used against them. In fact, they were informed — beyond what Miranda calls for — that if they declined to speak, no negative inference could be drawn against them. Finally, it was explained that, while they would be entitled if they were in America to free counsel throughout interrogation, because they were outside America, the agents were not in a position to ensure that counsel would be provided.

The advice was entirely accurate, which is the stated Miranda rationale: To give the suspect an accurate understanding of his situation before he decides whether to speak. But the progressive project is never static; having secured one accommodation, it presses ahead for the next. For Judge Sand, it was not enough for agents to be conduits of true information about the suspect’s predicament; he read Miranda, with its Dickerson gloss, as a call for social engineering in Kenya.

It was the agents’ duty, in his view, to become advocates for al–Owhali: to press the Kenyan government, which had just seen 200 of its citizens slaughtered by this terrorist, to abandon their benighted ways in favor of enlightened American standards — underscoring, yet again, the Framers’ wisdom in cordoning the judiciary off from the conduct of foreign affairs. Sand further fretted that the agents, by honestly telling al–Owhali they couldn’t assure him counsel in Kenya, had confused him about whether he still had an American right to counsel. In fine post-sovereign fettle, the judge pointedly rejected any implication that “the right to counsel . . . depended on geography.” In reality, it depended precisely on geography.

The suppression of al–Owhali’s confession would have destroyed the case against an al-Qaeda terrorist who was among the worst offenders ever brought into the U.S. justice system. We moved for reconsideration, and Judge Sand was finally persuaded that the confession was admissible — on the thin reed that, besides the advice of rights given by the agents, a prosecutor had orally informed al–Owhali that he had an absolute right to have an attorney present at the questioning, and that the suspect was the “‘boss’ at all times as to whether he wished to answer questions without a lawyer.”

The prosecution was saved. Al–Owhali and three codefendants were convicted at trial and sentenced to life imprisonment (the jury declining to impose the death penalty). Still, the damage was done. The precedent was established that when federal officials conduct criminal investigations in foreign countries that do not adhere to Miranda, those officials must nevertheless employ Miranda — and in a manner, Judge Sand urged, that requires them to become expert in foreign law, advocate on their suspects’ behalf, and insult their hosts over the purported inadequacies of their sub-Miranda standards.

[Note: The final section of this article, which will appear tomorrow, explains how the granting of full Miranda rights to terrorists was codified in law by Sen. John McCain, and how under Pres. Barack Obama, that policy is being applied inflexibly, and the War on Terror treated as a matter of criminal law — at great peril to America’s security.]

—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).