It’s McCain’s fault...what a stretch!
Try reading the article.
I guarantee the president will argue that he is merely bringing government agents operating overseas into compliance with the McCain Amendment (enacted as part of the 2005 Detainee Treatment Act).
I hate to say I told you so, but back when we were having this debate, thanks to Senator McCain's grandstanding on "torture," I warned that his amendment would lead to the legal claim that American agents — including the military — were now required to give Miranda warnings to captured terrorists outside the U.S.
December 15, 2005:
The longer one wrestles with it, the more the McCain amendment forebodes a national-security catastrophe.
...al Qaeda terrorists captured in battle by members of our armed forces—the American soldiers they are trying to kill—would not only be protected from rough interrogation. They may very well have to be given Miranda warnings as well as free lawyers—underwritten by the Americans they are trying to kill.
Cynically tacked on to the 2006 defense appropriations bill (and thus holding hostage provisions for our troops in wartime), McCain’s amendment was approved by a 90-9 Senate vote on October 5, and a margin of 308-122 in the House on Wednesday.
Tuesday, September 19, 2006:
...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.
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.
Looks like Andy was right back in September 2006.
If I am right that the courts, including the Supreme Court, would find the McCain Amendment provides alien enemy combatants held overseas with the Fifth Amendment right against compulsory self-incrimination, then it is unavoidable that Miranda warnings must be given.
This really demonstrates how irresponsible the passage and signing of the 2005 McCain Amendment was.
McCain Mirage
from an irascible senate maverick — an old Washington hand who is quick to exploit the trendy concern-of-the-moment, demagoguing anyone who dares worry about the bigger picture. Take the senator’s “McCain amendment,” the 2005 legislation that extended Fifth Amendment rights to terrorists overseas. In its 2000 Dickerson decision, the Supreme Court held that if a person has a Fifth Amendment privilege, he is entitled to Miranda rights — i.e., the right to an attorney, at the expense of the American taxpayer, during all questioning. That means any terrorist we capture overseas could plausibly claim Miranda protection under the McCain amendment.
In short, leaving aside that the chief effect of McCain’s grandstanding was to intimidate our interrogation officers (stoking a fear of investigations that prompted purchases of litigation insurance and a drastic reduction in intelligence-collection), his legislation could eventually shut down interrogations. A future court, or even Justice Department, could very well read the McCain amendment in conjunction with Dickerson to require that defense attorneys be inserted into the interrogation mix shortly after capture — long before the “advanced psychological techniques,” with which the high-minded senator plans to replace those “abusive” Bush tactics, have any chance to work.
When confronted with this possibility, Sen. McCain and his backers snicker that such suggestions are absurd.