When de­tainees get rights they don’t de­serve

The Washington Times Weekly - - Commentary -

It shouldn’t come as a com­plete sur­prise that, as Stephen Hayes re­ported in The Weekly Stan­dard, de­tainees in Afghanistan are now be­ing ad­vised of their Mi­randa rights by Amer­i­can in­ter­roga­tors — that they have a right to be si­lent, a right to a lawyer, a right to have that lawyer paid for, etc. This is, af­ter all, a log­i­cal ex­ten­sion of Bush ad­min­is­tra­tion crit­ics’ in­sis­tence that such de­tainees — though un­law­ful com­bat­ants un­der the Geneva Con­ven­tions — must be given ev­ery jot and tit­tle of the rights civil­ian Amer­i­cans en­joy on Amer­i­can soil.

It’s none­the­less news, if only be­cause Barack Obama on the cam­paign trail said that “of course” they would not get Mi­randa warn­ings. Now, “of course” seems to have been sub­or­di­nated to the higher prin­ci­ple of “yes, we can.”

This is in line with the Obama ad­min­is­tra­tion’s “global jus­tice ini­tia­tive,” which el­e­vates the role of the FBI and the Jus­tice Depart­ment in global anti-ter­ror­ism op­er­a­tions. In its pur­suit of the fu­ture, the ad­min­is­tra­tion is go­ing back to 1990s poli­cies of treat­ing ter­ror­ism as a mat­ter of solely crim­i­nal law and not seek­ing to go on the of­fen­sive against those who hate our civ­i­liza­tion and want to do us great harm.

But this is not just a mat­ter of one ad­min­is­tra­tion chang­ing the poli­cies of its pre­de­ces­sor. The ex­ten­sion of Mi­randa rights is also a symp­tom of two larger mal­adies that threaten to harm the body pub­lic.

The first of th­ese re­sides in the cul­ture of mil­i­tary law. Mr. Hayes’ story is based on the eye­wit­ness tes­ti­mony of Rep. Mike Rogers, R-Mich., a for­mer FBI agent and a mem­ber of the House In­tel­li­gence Com­mit­tee, who ac­tu­ally saw Mi­randa rights be­ing ad­min­is­tered in Afghanistan. But Mr. Rogers has said he wit­nessed this as early as last July, when Ge­orge W. Bush was still pres­i­dent, though the prac­tice seems far more wide­spread now. We can’t blame it all on Mr. Obama.

Some of the blame be­longs to our plethora of mil­i­tary lawyers. Jack Gold­smith, in his book “The Ter­ror Pres­i­dency,” which was mar­keted as a cri­tique of the Bush ad­min­is­tra­tion in which Mr. Gold­smith served, also lamented our “over-lawyered war.”

“Never in the his­tory of the United States,” he wrote, “had lawyers had such ex­traor­di­nary in­flu­ence over war pol­icy as they did af­ter 9-11.” There are, he pointed out, 10,000 lawyers in the Pen­tagon. That’s prob­a­bly not some­thing Franklin Roo­sevelt had in mind when he or­dered it built in 1942.

From what I can gather, mil­i­tary lawyers are less in­clined to tell our mil­i­tary per­son­nel what they can do than to tell them what they can’t. Even rou­tine mil­i­tary ini­tia­tives must be ap­proved by lawyers. And they seem in­clined, as one can gather from the at­ti­tudes of Sen. Lind­sey Gra­ham, R-S.C., who is a long­time mil­i­tary lawyer re­servist, to a max­i­mal­ist in­ter­pre­ta­tion of de­tainee rights. This was a prob­lem be­fore Obama’s lib­er­als en­tered the Jus­tice Depart­ment, and it will be one af­ter they leave.

The other prob­lem is what I call the sloppy over-gen­eros­ity of the Amer­i­can peo­ple. Ex­cept when aroused and alert, we have a ten­dency to be fat, dumb and happy, and to want to spread that hap­pi­ness around. So, hey, let’s give th­ese de­tainees more rights than they’re en­ti­tled to un­der the Geneva Con­ven­tions. It’ll make us feel gen­er­ous, and maybe it will make them like us.

The prob­lem with such an at­ti­tude, which is not lim­ited to the left end of the po­lit­i­cal spec­trum, is that the Geneva Con­ven­tions are not strength­ened but rather are un­der­mined by ex­tend­ing their pro­tec­tions to peo­ple who are not en­ti­tled to them. Geneva treats un­law­ful com­bat­ants — those not in uni­form or in an organized mil­i­tary force — worse than it does uni­formed sol­diers be­cause it seeks to es­tab­lish a clear di­vid­ing line be­tween sol­diers and civil­ians, to give lim­ited rights to the for­mer and to pro­tect the lat­ter. If you shield un­law­ful com­bat­ants from in­ter­ro­ga­tion, you cre­ate an in­cen­tive for oth­ers to fight un­law­fully and so are cre­at­ing greater risks for civil­ians.

Of course, as Mr. Obama said, it is ridicu­lous to ad­min­is­ter Mi­randa warn­ings to un­law­ful com­bat­ant de­tainees in Afghanistan. And it seems ob­vi­ous that if we re­vert to treat­ing ter­ror­ism as a mat­ter for pri­mar­ily crim­i­nal law, we risk open­ing our­selves to an­other Sept. 11-type at­tack, or worse. But the prob­lem is not just in the Obama ad­min­is­tra­tion — it is in our mil­i­tary es­tab­lish­ment and our­selves.

Michael Barone is a na­tion­ally syndicated colum­nist.

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