Tuesday, September 19, 2006

Alert: Miranda & McCain   [Andy McCarthy]

Richard Miniter has an interesting article at Opinion Journal today, explaining that among the things that moved House Armed Services Chairman Duncan Hunter toward the president's proposal on military commissions and away from the McCain/Graham/Warner proposal which is more modeled on the Uniform Code of Military Justice is the outrage that the UCMJ would require us to give Miranda warnings at the moment of battlefield capture for an al Qaeda terrorist.

This really demonstrates how irresponsible the passage and signing of the 2005 McCain Amendment was. 

I note in fairness that I believe Sen. Graham — who I have criticized in these quarters for his stance on military commissions (see, e.g., here) — has indicated during senate hearings that he does not think al Qaeda should profit from the UCMJ's generous Miranda protections (which are actually better than what criminals get in the civilian justice system).   

But that's irrelevant because the horse is already out of the barn.

Attention class:  THANKS TO THE McCAIN AMENDMENT, WE ARE ALREADY OBLIGATED TO PROVIDE MIRANDA WARNINGS IF WE HAVE ANY HOPE OF USING CONFESSION EVIDENCE IN EVENTUAL TERRORIST TRIALS.

This is very frustrating because people like yours truly implored Congress not to pass, and the president not to sign, the McCain Amendment for just this reason.  The McCain Amendment vested alien enemy combatants held outside the jurisdiction of the U.S. courts with Fifth Amendment rights.  This was something the senate had carefully refrained from doing in 1994 when it consented to the UN Convention Against Torture (which President Clinton then ratified).  

In 2000, in Dickerson v. United States, the Supreme Court upended 30+ years of contrary jurisprudence by holding that the rights invented by the 1966 Miranda decision are now considered part of the core guarantee of the 5th Amendment's right against compulsory self-incrimination. 

Consequently, if al Qaeda gets 5th Amendment protection, it also gets Miranda protection.  Miranda requires a detainee to be told he has a right not to answer any questions, and a right to have a lawyer, at public expense, present for all questioning.  That may not be what Congress and President Bush really intended, but that's what they did.

Now, neither Miranda nor the 5th Amendment forbids coercive interrogation short of torture.  But they do mean that evidence derived from questioning that violates Miranda cannot be used at trial because to do so would violate the 5th Amendment — again, not because the Constitution itself gives the 5th Amendment to alien jihadists (it doesn't) but because the McCain Amendment does.

If Congress is upset at the prospect of battlefield Miranda warnings for jihadists, it should not just worry about the current interrogations/military commissions proposal.  It should repeal the McCain Amendment's extension of constitutional rights to alien jihadists.

09/19 11:36 AMShare