Free Markets, Free People


Miranda and War

An interesting discussion broke out in the comment section of the Miranda post, which I’m hoping will continue. The primary issue (and I’m simplifying here) centers around just how detainees caught on a battlefield should be handled if they don’t fit the established parameters of soldiers under the Geneva Conventions. Although there appears to be agreement that reading detainees Miranda rights is a step (or three) too far, there is also wide agreement that we should be skeptical about allowing our government so much latitude as to hold anyone indefinitely. I think closing the gap on those parameters is the challenge to be met, but I don’t think it is possible to do so without understanding how war differs from law enforcement.

Clausewitz defined war as “continuation of policy with other means.” The crux of his definition is that “war” is simply a tactic used to further political goals. War is not waged as end in itself, but as a means towards other ends which, for whatever reason, could not be accomplished through non-violent tactics. There are always exceptions, of course, but certainly a rational state will not expend blood and treasure when the same goals can be accomplished without. Even an irrational state, with irrational goals, will not waste such resources if it understands that it does not have to.

The other tools in the box for continuing policy include diplomacy and capitulation. Once those are deemed exhausted or unacceptable (as the case may be) then the tool of war is likely to appear. In other words, if agreement cannot be reached between erstwhile enemies, and surrender by one side or the other is not acceptable, then actual battle will be necessary to decide whose policy will be continued. At that point all manner of understanding between the parties is dead and only victory or a credible threat thereof will allow the discarded tools to once again be used in the construction of policy.

In the absence of war, there is general agreement as to how competing parties will conduct themselves in the pursuit of their policies. Citizens may vote, senators may argue, special interests may agitate, and whole nations may barter. The agreements may deal with how citizens deal with one another, how governments deal with their citizens, or how violations of the agreements are handled (i.e. law enforcement). In the modern world those general agreements are reduced to treaties, constitutions, rules, regulations and the like, all of which may be considered law. The policies themselves may also be enacted into law, but without some understanding as to the mechanisms for peacefully deciding which policy will be followed, then war is the only tool available. A rule of law, which is only useful where there is broad agreement on it, obviates the need to use war to advance policy. All of the foregoing are the hallmarks of a civil society that depends on pursuing policies through peaceful tactics. To turn Clauswitz’s definition around, law is the continuation of war by other means.

To be sure, transgressors of law will be dealt with at times in violent ways, but there is at least a tacit agreement to the law’s authority to do so where the violator is operating from within the society and generally partaking of its benefits. If enough transgressors get together then the agreements have broken down, and civil war or revolution may occur. Therefore, war can be understood as the tactic that is used when the law has ceased to be of use. More simply, war is the absence of law.

Given the above, which is nothing more than a condensed version of my personal views on the subject, it is difficult for me to understand how legal concepts can be introduced into war. Opposing factions may agree with one another to fight under particular rules of engagement, or to treat enemy prisoners a certain way, but when those rules are broken there is no legitimate authority to enforce them. The Geneva Conventions represent a more elaborate attempt to impose limits on warfare, but even those were never intended to apply to non-signatories except in very limited circumstances (pre-Hamdan anyway). More importantly, it seems obviously ludicrous to apply laws outside such limited agreement to any of the parties involved in battle, because there would be no battle if such laws were being adhered to in the first place.

So while any number of parties may agree amongst themselves to fight under self-imposed rules, that does not give any of them authority to impose those rules on others. Furthermore, except where explicitly agreed to otherwise, such rules would not govern war between a party to such an agreement and a non-party. To look at it another way, if Mike Tyson and Evander Holyfield agree to fight under certain sanctioned rules, that does not mean that either fighter must adhere to the same rules if attacked by a third party on the way home from the match.

Accordingly, in a world of asymmetrical warfare, the basic principle that “war is the absence of law” seems to apply. In this context, the very idea of approaching war with terrorists in foreign countries under a rubric of law intended to govern domestic life appears absurdly out of place. Treating detainees captured on the battlefield to the luxury of legal niceties intended to protect the very citizens those terrorists seek to harm defies all logic. And pretending that reading any of them Miranda rights will do anything more than hamper our ability to defeat these cretins is an exercise in serious delusion. In short, law is a manifestation of the agreements underlying a peaceful community, and war is the means of protecting those agreements from those who seek to subvert them.

When considering just where the line should be drawn then, between reading enemies their “rights” and allowing the government to detain them indefinitely, I think it’s useful to understand that we are not really talking about a “rule of law.” Instead, we are talking about how best to utilize the tactic of war in furthering our policy of not allowing crazed radicals to murder our citizens. While I find great merit in placing the government (i.e. our instrument of war) on a firm leash, I don’t think it is at all useful to conflate the means by which we protect ourselves from an overbearing government with the means by which the government protects us from enemies bent on our destruction.

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22 Responses to Miranda and War

  • I am a little bewildered why this continues to be a point of controversy.  It seems pretty straightforward to me.

    (A) If our Armed Forces capture some goon in a country that has a (more or less) operative government, then we hand the SOB over to that country’s legal system.  It’s their territory, after all.

    (B) If our Armed Forces capture some goon in a country that has no operative government (we could reasonably be considered the “occupying power”) or on the high seas or international airspace, then said goon is tried by court martial and be subject to such penalties, including execution, as it may direct.  Alternately, the goon may be held until such a time as a new, local government can be formed with a properly constituted legal system that can try him.

    The central problem we seem to be encountering is punishment: we balk at executing every “unlawful combatant” we capture, but we also balk at imprisoning them for the rest of their lives because the war they’re fighting doesn’t seem to have any definable ending.  In my view, however, these people are nothing more than murderers who claim to be fighting a “war” as a flimsy justification for their acts and should be treated as such, i.e. imprisoned for life or (better) executed like common criminals.

  • I missed the original discussion too, so forgive me if this has already been discussed.

    In general, Miranda was the height of what many call “judicial activism.”  It was an overreaction to the perceived problem of police abuses during custodial interrogations.  I am unclear why anyone would believe this passes to battlefield combatants, however.  The key portion of Miranda is this:

    Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

    I believe the bolded portion contains the triggering mechanism for the Fifth Amendment and any attendant safeguards.  Once a person has been transported from the battlefield on the basis that he has committed a crime, i.e., aiding and abetting terrorism, etc., I can see where someone might believe Miranda protections are warranted.  However, I can find no basis for the position that upon taking a POW these warnings must be given.

    In any event, this should be a non-issue.  The FIfth Amendment requires that the right against self-incrimination be preserved.  Nothing more, nothing less.  In my mind, it does not require that the police give you a general eighth grade civics lesson on your rights.  It is the job of an active citizen to be well aware of his own rights and limitations.  But this is the product of the Court’s makeup at that time.

    In the words of Hank Hill, “A woman did ruin the Supreme Court, and that woman’s name was Earl Warren!”

  • This all’s fair in love and war outline is troubling in some areas.

    If there are no legal limits to what our government can do during a time of war, it would grant our government the means without consequences to do anything it wanted using a war banner as a shield. 

    The people:  Hey, that’s way over the line.
    The Government:  Well, we’re at war… whuddayagunnado?

    More importantly, it seems obviously ludicrous to apply laws outside such limited agreement to any of the parties involved in battle, because there would be no battle if such laws were being adhered to in the first place.

    That’s a forgiving philosophy.  Using that strategy, couldn’t … say … a local police officer beat the crap out of a speeding motorist suggesting, “Hey, well, if they didn’t adhere to the law, then why should I?”
    There are reasons we hold law enforcement to a higher standard.  There are reasons we hold our government to a higher standard.  And there are reasons we hold our military, even during a time of war, to a higher standard.  Without setting these standards, complete with legal consequences, it opens the door to abuse.  It is the nature of man.
    You remember, absolute power corrupts absolutely.

    While I find great merit in placing the government (i.e. our instrument of war) on a firm leash, I don’t think it is at all useful to conflate the means by which we protect ourselves from an overbearing government with the means by which the government protects us from enemies bent on our destruction.

    If not with some kind of rule of law, then by what means do we tether our government?

    Pinky swears?

    And yes, yes…  These guys are scum-sucking maggots.  The most vile, wretched murderers who have demonstrated a void of all reason, respect, and humanity.  They deserve to be thrown in a dungeon indefinitely.  They deserve to be waterboarded.
    They don’t deserve Miranda or any other rights we’ve given ourselves to protect us from our government.  They don’t deserve any sympathies, invitations or hospitality.

    But deserve has nothing to do with it.

    Cheers.

    • You’re missing the point, Pogue.  If war equals the absence of law, then applying legal principles makes no sense.  If, instead, you want to tether the government (which I agree with), then the discussion should concentrate on such efforts.  Granting rights to our enemies as a means of controlling our government is counterproductive and illogical.

  • in a world of asymmetrical warfare, the basic principle that “war is the absence of law” seems to apply. In this context, the very idea of approaching war with terrorists in foreign countries under a rubric of law intended to govern domestic life appears absurdly out of place

    …. and…..

    If war equals the absence of law, then applying legal principles makes no sense

    I seem to recall rasing this issue with regards to interrigation meoths, and was shot down for my trouble. Now, suddenly, it’s valid reasoning again? Seems some strangely elastic principles are under this change of attitude about war and law, and the latter’s validity within the context of the former.

    For the record, Mirandizing combatants in a war zone is likley one os the more stupid things I’ve seen this White House do… in a term that even now is setting records for stupid acts.
     

    • I seem to recall rasing this issue with regards to interrigation meoths, and was shot down for my trouble.

      I don’t recall what you’re referring to, Eric.  Can you be more specific/provide a link?

      • Oops. I forgot I brought my phone today, which solves some internet access issues. Sorry.
        Anyway, dated June of 2007:

        http://www.qando.net/details.aspx?Entry=6245

        Now, at the time I offered this argument, the topic of discussion was ‘torture’ Balko and Henke were rather annoyed we’d employed it. I said:

        War, by definition, is the absence of morality.
        You have the ability to bring about morality only AFTER you’ve won the war.
        Declaring something moral or immoral is a luxury that only those who have won the war can claim. Doing so before the war is won, is the fastest way to lose.

        Seems to me that applying Miranda is among other things, trying to impose morality on war, by means of law.

        • It’s fun to go back and read those older threads. My favorite part,

          I’ve got a saying: If hooking a guy’s testicals to a car battery will get us information that will save a life (or as most would be the case), I have two things to tell you. Red is positive, black is negative.

          Well, Scott… that is just plain stupid. A man’s testicles are not polarized, so it doesn’t matter that red is positive and black is negative.

          Written By: PogueMahone

          LOL … sigh… That guy is hilarious.

          Cheers.

        • OK, I see where you’re going.  Obviously I wasn’t part of that conversation, so …

  • Okay.

    If war equals the absence of law, then applying legal principles makes no sense.  If, instead, you want to tether the government (which I agree with), then the discussion should concentrate on such efforts.

    Then how?
    If law, in general, is not the mechanism to use, then what is?
    This?

    And if we’re to not to grant detainees any legal rights at all, not necessarily the same rights that we enjoy, what party would be represented to address grievances against the government, should the government act wrongly?

    Also, how reliable would wrongdoing be discovered  if detainees enjoyed no legal rights or representation?
    If we haven’t already, probability dictates that the government will detain someone who doesn’t deserve to be detained, and without anyway for this person to address that to a third, independent party, is this person just SOL?

    You say that granting them legal rights in an arena absent of legalities is illogical and counter-productive.  Yet you do express a desire for checks and balances and accountability.

    My question remains.  If not law, then what?

    Cheers.

    • Then how?
      If law, in general, is not the mechanism to use, then what is?

      We would use law to tether the government, but the distinction I’m trying to make is between the “rule of law” which governs a peaceful society, and the “rule of war” which governs how that particular instrument of policy is used.  There may be agreements between combating parties as to the “rules of war” (e.g. the Geneva Conventions), but where there are no such agreements then any rules of war will be self-imposed.  IOW, such rules do not exist as a matter of protecting the rights of the opposing party (which is what applying a domestic rule of law would be doing), but instead as self-restrictions meant to define what is acceptable to the party doing the restricting. 

      If we tether our government, therefore, it is because we believe that fighting a war should be conducted in certain ways, not because we have any agreement with the enemy as to how it would done, and certainly not because the enemy enjoys the protections against our government that her peaceful citizens do.  Similarly, if the enemy should choose not to adopt any restrictions in how it does battle, we have no authority (other than victory) to impose legal sanctions on them.  That’s not to say we won’t call them “legal sanctions” just that we’re participating in a fiction when we do.

      And if we’re to not to grant detainees any
      legal rights at all, not necessarily the same rights that we enjoy, what party would be represented to address grievances against the government, should the government act wrongly?

      That’s a really good question.  Standing is always an interesting issue in cases like this (i.e. against the government).  I suppose we could establish some sort of private AG statute with respect to enforcing whatever restrictions (i.e. rules of war) we put in place.  That promises to be problematic, however.  Congress is probably the best place to bestow authority for seeing that the rules of war are followed, although that too can have its problems.  Honestly, I’m not sure what the best answer is.

      Also, how reliable would wrongdoing be discovered  if detainees enjoyed no legal rights or representation?
      If we haven’t already, probability dictates that the government will detain someone who doesn’t deserve to be detained, and without anyway for this person to address that to a third, independent party, is this person just SOL?

      Frankly, yes.  As sad as it is to say, life isn’t fair and no matter how many laws we pass it never will be.  Between treating unlawful (i.e. outside of GC or any other inter-party compacts) combatants as citizens vis-a-vis the government and depending on the citizens to restrain the government, I think it’s clear that the latter is the better option, even though neither is ideal.  Choosing the former simply undermines the ability of the government to protect her citizens.

      You say that granting them legal rights in an arena absent of legalities is illogical and counter-productive.  Yet you do express a desire for checks and balances and accountability.

      My question remains.  If not law, then what?

      I hope I’ve cleared up the difference I’m making.  I understand that I’ve probably both oversimplified and overcomplicated the issue (which is quite the feat, IISSMS), but I’m trying to distinguish between the “rule of law” and the “rule of war.”  The rule of law is only effective insofar as it enjoys broad agreement amongst those who are subject to it, and its intent is to govern a peaceful society.  The rule of war may be formed from agreements between the parties, but absent such on self-imposed rules will exist and the enemy will have no right to enforce them.

      • but instead as self-restrictions meant to define what is acceptable to the party doing the restricting.

        I think that’s a highly valuable and valid point to note.
        You’re right.
        It is a proclamation of the rules you intend to operate under so your own people have guidelines AND it also provides you recourse to outline what you intend to do should the opposing side violate your guidelines.  Meaning that as you have warned them what you will do, your actions are no longer necessarily capricious or vague, assuming you’ve followed logical and restrained methods for violations of your guidelines that a ‘civilized’ nation wouldn’t find outre –
        For example – we will execute anyone caught and ruled to be a spy
        VS
        we will burn down any town and massacre the population if we catch a spy.

      • I hope I’ve cleared up the difference I’m making.

        I’m sorry, but serious discussion Pogue has clocked out for the day.  I’ll leave him a message and he’ll try and get back to you.  ;)

        Heh.  You’re right.  These aren’t easy questions and solutions will prove to be difficult.

        Thanks for the topic, and the discussion.

        Cheers.

        • Thank you, Pogue.  You and looker were the inspiration for the post and you (and the other ocmmenters) have helped me to crystallize the vague ideas running around my brain.

          I’m sorry, but serious discussion Pogue has clocked out for the day.  I’ll leave him a message and he’ll try and get back to you.

          No worries, “serious Michael” is getting ready to watch Game 7 of the Stanley Cup Playoffs with his two sons (man, how long have I waited to say that!).  I just appreciate everyone’s input.

          • My pleasure.

            Go Redwings.  – Not that I care either way really, just that Detroit might could use a celebration.  And Pittsburgh won the SuperBowl.  My Bruins lost a heartbreaker, :(

    • And if we’re to not to grant detainees any legal rights at all, not necessarily the same rights that we enjoy, what party would be represented to address grievances against the government, should the government act wrongly? Also, how reliable would wrongdoing be discovered if detainees enjoyed no legal rights or representation? If we haven’t already, probability dictates that the government will detain someone who doesn’t deserve to be detained, and without anyway for this person to address that to a third, independent party, is this person just SOL?

      I go with Michael on this – as the ‘captured’ party you are pretty much SOL.
      You must rely on your captor adhering to his own set of restrictions (assuming he has them), and rely on the decent men and women, both in your captor’s military and civilian structure, to enforce those restrictions upon themselves.
      Otherwise as a captive your only other option is to hope YOUR side will win ultimately, and will be able to redress any grievous ill you suffered in captivity.

      I go back to what I said earlier, I disagree with these people being held in limbo, we are discussing it,  it is likely it will be addressed by the government (and one stupid method will clearly be Mirandaizing captives…) and there will be a resolution, which may or may not be satisfactory to the current captives.

      At least as a nation we care enough to discuss it and try to find a civilized answer and some measure of justice, a positive sign I think.

      Consider some of our opponents – sawing off captives heads.   Not so good.

  • I don’t recall what you’re referring to, Eric. Can you be more specific/provide a link?

    Not right away, Mike, since my search ability is limited from here at work; I’ll tend to this once I get home.

  • I disagree that war is necessarily the absence of law – again, falling back on the principles outlined in General Order 100, 1863, the point was that “civilized” nations, recognized in general, certain rules, EVEN in time of war.   Specifically it outlines what rules ARE in play, and why the United States Army & civilized nations in general, either as occupied, or occupier, will acknowledge them, even in war.

    Read the order sometime, it covers for example, whether or not you HAVE to let the civilians in a besieged city free (which is to the benefit of the defenders, reducing their need to feed, care and provide for them – and NO, at that time, it was not felt that you MUST, you could, and it was gentlemanly, but it was also understood it was part of reducing the defenders ability that much more quickly).  As further example, there were specific sections detailing what to do about precious art, technology (telescopes/observatories), etc and how both the defender and attacker should consider themselves under obligation not to destroy, oh, say, Stonehenge, if that happened to be IN the war zone.
    So, to say there ARE no rules is, at least amongst modern societies is clearly wrong.  As an instance of ‘retaliation’ for breaking of a commonly held ‘rule at the time’, I give you the burning of Washington DC in 1814, undertaken by the British in response to the burning of  York, now Toronto, perpetrated by the Americans, during the winter of 1813.  The British arriving in force in York after American forces had withdrawn were horrified to find that not only legitimate ‘military’ targets had been destroyed, but that the town itself, to the detriment of the civilian residents in winter, had also been burned.  They were furious over it and demonstrated that fury later in Washington in retaliation.
    Had there been no ‘rule’ in anyone’s mind, it would have merely been business as usual.  Hence, the exception made by the British command in allowing the burning (though I seem to recall they had already rendered payback on an American town in New York state).

  • Note, I have conflated rules and law – and regret that.  There really IS no law, because aside from a victor imposing his ‘law’ on a vanquished, it’s unlikely there will be a third party to determine if that imposition is ‘just’.

  • Quite so. You were not, and I’m sorry if I added confusion with my wording. For my part, Mike, I agree with you, within the discussion here.
    I bring it up however, because it seems to me there are a lot of implications on this discussion from that thread, and on that thread to other recent discussions about principle, to say no more.
     

  • Humans have rights, we Americans believe, the rights are given to all humans.  I guess if Congress declares a war you might make a case that in some cases we can deny rights.  But there is no legal war, since only Congress can declare it, and in any event, it is an abandonment of American principles to deny rights.

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