Michael Barone / June 16, 2009

When Detainees Get Rights They Don’t Deserve

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. 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 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 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 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 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.

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