Free Markets, Free People

Miranda Warnings In The Battlefield?

This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:

… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.

Consider the following:

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”

But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”

According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”

Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”

Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.

War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.

For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.

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34 Responses to Miranda Warnings In The Battlefield?

  • Isn’t it against the Geneva Accords to treat captured enemy combatants as criminals?  Now, irregular troops, like terrorists, do fall under certain rules that do not have the protections of regular troops.  But this is ridiculous.  This precedent is horrible.  How the heck can we ever go to war with this precedent in place? 

    • IIRC there are provisions in place for treating enemy soldiers under the rules of law in place at the time.  It’s been a while since I’ve looked at those provisions, but I seem to recall something about trials for enemy soldiers not exceeding the local jurisdiction’s own criminal laws.  But I could be mistaken, and your point has merit.

      As for how we could possibly prosecute a war under such conditions, I’m truly at a loss at how it could be done effectively.

    • The Geneva Conventions are about protecting non-combatants including civilians, wounded and prisoners of war.  Military units must be able to distinguish their own troops from those of their adversaries and and protect innocent civilians.

      Irregular troops, such as partisans or local militia, must (1) wear a distinctive marking, (2) carry weapons openly, (3) have a chain of command and (4) abide by the Geneva Conventions themselves.  Illegal combatants (those who do not abide by the four rules above) have no Geneva Convention rights and are war criminals. 

      Al Qaeda and Taliban scum wear civilian clothes, use human shields, kill innocent civilians, conceal their weapons, act without authority from a responsible command and ignore the Rules of Land Warfare and the Geneva Conventions.

    • How the heck can we ever go to war with this precedent in place?

      Bingo! Numbers have been verified. We have a winner!

  • I have had some ideas on this topic.

    1. Along with air dropping in humanitarian rations for the populace before we begin our attacks, we also air drop in uniforms for the enemy to wear. (The smart aleck in me would give them orange jumpsuits to double as their prisoner uniforms, but I’m sure HRW would object to not giving them a fighting chance.

    2. PsyOps will now consist of broadcasting Miranda rights in Pashto, dropping translated leaflets of the Bill of Rights, with handy 1-800 numbers for defense lawyers and bail bondsmen – these advertisements will defray costs.

    3. Special Ops will now need to include a new team member that will be a “Commando Lawyer” who will be in charge of booking, chain of evidence, serving warrants before we break into the compound, securing said search warrants from Brussels or the Hague, etc. (maybe it would be cheaper to have volunteer defense lawyers who we send in ahead of time, like human shields, who could read miranda rights en masse before hostilities started? or perhaps simply draft law professors for this duty – though that might make their opinion on lawfare suddenly change.)

    4. Hire Uzbeki mercenaries via our CIA operations in Palau who will not be bound by these rules, until the program is leaked to the NYT.

     

    • I actually laughed out loud at these.  So much so that I couldn’t bear to do your comment the disservice of typing “lol”.

    • We could end all the nonsense if al Qaeda and the Taliban would attend a “Jihad-aton”

      The idea is to have the Islamists, either individually or in groups, approach a valley from one end and on the other end would be the 82nd Airborne complete with artillery and tanks.  There is nothing “fair” about this, the Islamists are simply converted to “martyrs”, no muss, no fuss.  The 72 virgins (or is that Virginians) await.

    • Commando Lawyer??  Hey Publius is available.  He seems to have the right ideology for this sort of stuff :)

  • This simply can’t be right, can it?

    Of course it can.

    To Obie, it’s all just one big law enforcement problem….

  • If we’re going to turn the WOT into L&O, we could bring all the troops home and put red light cameras up all over Afghanistan.  Pick ‘em all up on moving violations!

    Troops home for Christmas and a job for Sheriff Joe, win-win.

  • LOL
    Lots of Lawyers

  • The military should recruit a new combat specialty – Fire Team Attorney  or FTA.  (A Fire team is the smallest infantry maneuver unit – a three or four foot soldiers.)

    Adding a lawyer (who could double as an ammunition carrier) would allow these units to assess the combat situation, evaluate the applicable Laws of Land Warfare and Geneva Convention provisions before engaging the enemy.  During and after any engagement, the FTA would record activities, collect necessary evidence and ensure the civil rights of illegal combatants are protected.  If any violations of law occurred, the FTA would be subject to trial under the UCMJ.

    Recruiting should not be a problem.  The US has an overabundance of law school graduates who are interested in protecting our enemies.  Upon graduation, we would register lawyers with selective service and give special merit to ACLU, CAIR, ACORN, LaRaza, NBP and ANSWER community service.

    • Don’t forget the always valuable Forward Observation Lawyer or FOL (pronounced fool).  These FOLs would deploy in advance and spot possible combatants and offer representation before engaging US forces.

      • I think the people for the job would the Battlefield Attorney for Detainee Apprehension and Special Standards in Military Occupation of Forward Operations, better known as the BADASSMOFO’s.

    • I see a problem with that. What with the lack of television cameras, Starbuckses(?), Brie, and Chardonnay over in Stanstan  I foresee an extreme reluctance of these stalwart freedom fighters to volunteer to serve. They will probably oppose going over there quite vigorously. On the other hand this will keep them from causing too much other trouble.

      One of the salutory side effects of forcing all those heroic freedom-fighting lawyers to put their money where their mouths are is that applications to law schools would probably decrease substantially. Imagine a future with a lot fewer civil rights and product liability lawyers.

      • Special deal.  We draft the lawyers we need.

        You know UAB Med schools stopped using lab rats and replaced them with lawyers for three reasons.

        First, lawyers are physically quite similar to humans.
        Second, there are so many of them around.
        Finally, no one gets emotionally attached to them,

  • What do you expect when you elect a lawyer/community activist who never served or held a job that was not academic or political?   His economic policies are as divorced from reality as this.

  • Maybe we should have soldiers swear out affidavits and secure warrants before attacking an installation.  After all, you wouldn’t want to violate anyone’s rights.

  • “As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill.”

    I’d like to think that, too. But the easiest explanation is usually the most accurate. This administration, at nearly every turn, is proving to be ideologically blinkered and dangerously ignorant.

  • Mirandizing combatants and terrorists smacks of actual imperialism.  Invading the country to overthrow a tyrant who was ignoring his obligations to the UN, and who was hell-bent on doing us harm — that all makes sense.  The intelligence was bad, blah blah blah, but we’re not planning on colonizing Iraq and making it the 51st state.  As soon as we can get out, we will.

    But presuming to cover the people “over there” with our civil laws and procedures … that seems a step in the direction of  colonization.  Shoot ‘em, but don’t treat them as de facto citizens of the United States!

    Am I missing something here?  Or is this the sort of imperialistic action that the left would have torn itself in half over just last year?

  • Now this is just an honest question, so your pocket your fists for just a moment.

    If these prisoners shouldn’t be treated as POW’s, and they shouldn’t be treated as “criminals”, then what rule of law should they be treated with?

    Surely our government, any government, cannot be allowed to detain persons of whatever stripe, without any rule of law, to do with what they will, to act without fear of consequences and legal retribution.  To make it up as they go.
    To act with undue, unchecked authority. 
    There has to be some sort of structure to bind an otherwise boundless authority and power.

    This is the conundrum.  Bush/Cheney didn’t get it right.  Obama may not be getting it right.
    This is something that a blogoshpere can actually influence.  Persuasive arguments to form opinions of a popular, and hopefully just, legal and binding set of rules and laws that our government, we the people, hold those in positions with the ability and responsibility.

    Or do we leave it up to the Hannity’s and the Mancow’s?

    Cheers.

    • “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

      From Article III – so, a competent tribunal must classify them after capture.  The argument, as I understand it, against an Unlawful Combatant category is, you’re either a solider, or you’re not.  If you’re NOT, you’re a civilian.  

      • As a, say, Afghani civilian, living in Afghanistan, I fail to see how you’re subject to Miranda rulings if you’re taken captive for a hostile act against the US/coalition.

        And, further, are we saying that the Germans or British, as examples of fellow warriors in Afghanistan, must Mirandaize prisoners?  What happens if they’re taken by British forces, and turned over to Americans?  
        The idea that Miranda has any place in a war zone (baring, say, downtown Washington DC) is insane.

        • So the spade is a spade.

          Now what?

          • Surely our government, any government, cannot be allowed to detain persons of whatever stripe, without any rule of law, to do with what they will, to act without fear of consequences and legal retribution. To make it up as they go. To act with undue, unchecked authority.

            Right, I agree, and have always thought to myself the idea of holding these people in permanent limbo is wrong. Assume for the moment we’re talking strictly those taken in Afghanistan.

            They’re either criminals IN the state of Afghanistan, in which case they are subject to Afghan law, or they are soldiers, in which case they are prisoners of war and must be held in an appropriate POW facility as outlined by the conventions until the conflict ends (that could be a long time…).

            It is acknowledged in the conventions that soldiers out of uniform are classified as spies.   Spies can be executed, but not without a trial. It appears the general feel of the document as I’ve read so far implies that a decision about civilian or soldier will occur fairly quickly (soldiers or those so marked are obvious, meaning the only time you need to really decide is for the case of civilians acting LIKE soldiers).

            One way or another, and my reading has been limited and not intense, there doesn’t appear to be an unlawful combatant category as you can always classify someone as a soldier (even out of uniform), or a civilian (criminal assuming they committed some act that would normally qualify them as a criminal).

            At no point in either of the two places I’m thinking they should go, are they entitled to protection under the Constitution of the United States.
            They’re either subject to the rules under the convention, or they’re subject to Afghan law. That’s the point here, Miranda, one way or the other, doesn’t apply.

            Full disclosure requires I note that the worth of my opinion must be combined with 6 bucks or so in order to buy a decent draft beer.

          • Alright then.  Now we’re getting somewhere.

            They’re either criminals IN the state of Afghanistan, in which case they are subject to Afghan law, or they are soldiers, in which case they are prisoners of war and must be held in an appropriate POW facility as outlined by the conventions until the conflict ends (that could be a long time…).

            Sounds reasonable.
            Why then did we take them from the battlefield and not classify them as POW’s?  Why did we take “unlawful combatants” from Afghanistan, and if they were unlawful, why weren’t the Afghan government authorities made to deal with them?  Is it because we didn’t trust the Afghan authorities at the time?  Do we trust them now?  If we trust them now, then why not turn them over.

            See, now this is good.
            Dude, looker… you and me man, as soon as I refill my screwdriver, you and I … we’re gunna solve this.
            We’ll be heroes.

            At no point in either of the two places I’m thinking they should go, are they entitled to protection under the Constitution of the United States.
            They’re either subject to the rules under the convention, or they’re subject to Afghan law. That’s the point here, Miranda, one way or the other, doesn’t apply.

            You’re right.  They don’t belong in my courthouse.  They don’t get Miranda rights.
            But goddammit, they don’t get to be shoved into a dungeon at the discretion of our government.  Not at least without some accountability from our government.

            Am I right?

            Full disclosure requires I note that the worth of my opinion must be combined with 6 bucks or so in order to buy a decent draft beer.

            While your at it, get me a Franziskaner Weissbier.  And don’t forget the lemon.

            Cheers.

          • Yeah, as I said, I’ve always disagreed with the idea that we can hold these guys calling them ‘unlawful combatants’.

            Either prisoners, or civilians who committed a crime of some sort.  Sort em out and put em in the camps, turn em over to Afghan authorities, or let them go with an apology (civilians) and explanation.

            Now, as to duration of incarceration in the POW camp, should they be classified as soldiers?  Well, that’s their problem.  That’s the nature of war, it goes on until you get a victor or a peace settlement. 
            There’s also ‘parole’ but that’s an outmoded concept that no one buys any more.  There’s no honor understanding between the sides here, one side’s honorable actions could be the other side’s opportunity to take advantage, so no one is going to rely on the honor of these prisoners not to practice war again should they be released.

            This is precisely why the conventions were established in the US (See the Lieber Code, General order 100 of 1863, United States Army) during the Civil War, and subsequently a lot of what Lieber drew up was adopted by international accord.  When you have people who expressly don’t identify themselves to take advantage of that fact it gives them an military edge you open a can of worms when it comes to dealing with them.   What the codes establish is a set of rules that Civilians understand the military WILL use – stated beforehand.    This helps avoid situations like the French in the Vendee and the brutal guerilla war that occurred there.  The Lieber code was intended to cover those circumstances so you didn’t get arbitrary actions (by both sides) towards uniformed troops and civilians in an area of conflict.

            So you don’t get cases of some town in a hostile zone claiming “we didn’t know you’d blow up our town if we murdered the soldiers you billeted in our barn”! (gee, surprise surprise!).  The military response can now be “No, you DID know, we TOLD you we would, in the hope that you would restrain yourselves and not murder them in their sleep, and wouldn’t force us to blow up your town in response”.

  • Pogue said, “what rule of law should they be treated with?”

    1.  Military tribunals could order them executed or imprisoned under the law approved by Congress and signed by Bush.   How do you know Bush  & Cheney didn’t get it right?  Obama still preserved the options of enhanced interrogation techniques and military tribunals.

    2.  We could, as we did with Saddam, turn them over to the tender mercies of the locals.

    3.  We could classify them as POWs and keep them in Gitmo until hostilities cease.

    4.  We could take fewer prisoners.

    • 1.  Military tribunals could order them executed or imprisoned under the law approved by Congress and signed by Bush.   How do you know Bush  & Cheney didn’t get it right?  Obama still preserved the options of enhanced interrogation techniques and military tribunals.

      So we leave it up to the military to decide?  It may be “legal”, but is it just?  For all of their honor and valor, is the military the best arbiter to decide who gets detained indefinitely, who gets executed?  And are we to hold our military to the consequences and retribution for decisions wrongly made?  Don’t they have enough to deal with?
      Did Bush/Cheney get it right?  Are you kidding me?  Wasn’t it their decisions that got us to this point to begin with?

      None of your points wash with me.

      2.  We could, as we did with Saddam, turn them over to the tender mercies of the locals.

      Well, that’s just great.  As a beacon of hope and democracy, we’re to go in, oust the current brutal regime, only to hand over power to another mob?  And let that mentality set the rules and summary judgment over all, deserving or not, of the class of their previous oppressors?  To give power to one authoritarian state over another?
      Not on my dime.

      3.  We could classify them as POWs and keep them in Gitmo until hostilities cease.

      We could.  But then who is to say for whom these hostilities are against?  What nation?  What faction?  And then who is to say when these hostilities have been ceased?  The Irish and the English have been at hostilities for over 700 years. Surely you wouldn’t be so naive to think that in a decade or two, we would have declared a cease fire with terrorists and other “unlawful combatants.”

      4.  We could take fewer prisoners.

      Kill ‘em all and let God sort ‘em out!  Turn that sandpit into a f*cking parking lot.
      The most gruesome, the most offensive, the most horrible of situations.  And although I disagree, of your other suggestions, the most difficult to disagree with as far as effectiveness.

      Cheers.

      • Actually there is a precident. Treat enemy combatants the same way we did “Werewolves” in Germany after WWII.

  • The situation is actually much trickier than the case of capturing combattants on the field of battle. Take the case in Afghanistan of two Arab males detained sneaking into Afghanistan dressed as women. Obviously, they are fighters come to join the Jihad (though they will claim they are looking for wives, or work for a charity, or whatever their training told them to say.)

    They are not fighting yet. They have not broken much of any law, and Afghanistan did not have any legal system at that point, and no legal authority to turn them over to. If you simply release them, you will fight them later. If you send them back to Sudan and Egypt, they might be tortured as militants, or simply come back again to fight.

    Note also, that the morale of your own troops will plummet if you end up with a “catch and release” program – this actually happened in Afghanistan with our troops complaining when they brought guys in for the 2nd or 3rd time.

    All of the above from an actual case from the book The Interrogators…with paraphrasing from memory. A very interesting book.

    • Can be classified as spies under the convention.  Presumably if there was some ‘good reason’ they dressed as chicks apart from wanting to sneak into the country to kill unbelievers, that would come out during the tribunal.

      That’s why you have to hold the tribunal to hear their reasons for being (in this case potential combatants) out of uniform.

      I don’t think the idea they ‘have done nothing yet’ grants ANY kind of immunity.  That’s like saying the Germans ought to have felt obligated under the convention to let a landing craft ashore in June of 1944 if it was filled with guys wearing golfing outfits from the 1940’s, provided the potential golfers hadn’t done anything hostile yet.  With regard to your example of men dressed as women, clearly the disguise is an intent to deceive, and as such they’d better have a very very very good reason that, frankly, given their culture, they probably aren’t going to be able to come up with.

  • Well, kind of. As a constitutional lawyer for the last few years; it is apparent that you only speak half truths. The Miranda rights were founded on the principle of creating a better, more uniformed way to treat non combatants. It has evolved, into a new and more welcomed formed. Obama’s step is in line with the new international consensus regarding prisoner treatment. This welcomed and softer side is already presenting positive changes. We can see that the Afgan government has all but stopped arresting AP members and is now allowing more open conversations or governmental procedures. This is a direct result of the US decision to allow Afgan Prisoners trials. The international community is a tip for tat body that requires give and take, Obama is simply giving right now. Lastly this blog is aimed at creating free(er) markets, international consensus creates this, and it should be the goal of all members here to work for better governmental interactions. Only through diplomacy can free trade be created, so it is important that we work to better the lives of all people we (the US) comes into contact with on a international scale. To not do so will create more chains of economic repression. As free marketers it is our responsibility.

  • I don’t know where the English losing North America because of fighting fair and taking tea breaks comes from.
    I apologize because i understand the central point of this blog really has nothing to do with this historical reference that was made, but it was a damn poor one.
    From the prisoner ships to Tarleton, the British response was a model of violent ends justifies the means and uncivilized response to the rebellion. While Washington, probably the greatest man in human history enforced and demanded that British prisoners of war be treated  humanely, the British put Americans in virtual hellholes, akin to a death sentence. Their proactive response to ending the rebellion often included sending out raiders like Tarleton who recognized no rules or standards of war, often targeting and terrorizing civilians as well as soldiers. People forget that the earlier you go in history, the less likely the concept of a war crime was to exist in the minds of people.
    The British were far more uncivilized than the Americans,  as  bad as the Americans were, after all Americans were the traitors. And it certainly wasn’t mismatched tactics that caused them to lose either.  At the inception of the Rev War one of the greatest causes for celebration was when Americans fought the British toe to toe in Boston using their tactics. Facing off against them at that time was like taking on Darth  and the Death Star so beating them at their own game was of immense psychological value.
    One of the greatest contributions came when Von Steuben drilled Washington’s troops into European military style regiments. Most of the war was fought and large gains made with both sides using the same training and tactics in battles. Washington never engaged the British because he realized that as long as he didn’t lose, he didn’t have to win and the British would lose as long as his force existed and create expense along with low public approval in England. He waited until he knew he could win. The final and deciding battle causing the surrender of the British was a typical European type trench siege of a city, with the French navy necessary to seal off the escape of the British.
    On the meat of the blog article, I just don’t get Malibu and his giggle. Is this guy in office to do Sacha Baron Cohen on the US populace? Is this Miranda thing to see whether people will get so hot you can see them steam? Put them in a crucible to see how much they can take before they lose their dignity? It’s another of a long line of practical jokes by the racist in chief, right?