How War Fighting Became Law Enforcement; Obama Goes to Court ... 9/11 and the McCain Amendment

McCain explicitly included the Fifth Amendment in his legislation because it addresses his target, coercive interrogation. As we’ve seen, in Dickerson, the Supreme Court held that Miranda was now considered part of the Fifth Amendment’s core. In the al-Owhali case, Judge Sand ruled that Miranda imposes daunting burdens on American agents overseas — burdens far more challenging than the rote reading of an advice-of-rights card that typically happens in domestic policing. With the Supreme Court, beginning in 2004, imposing more and more criminal-justice procedure on the battlefield, the McCain Amendment would almost certainly be used by courts or a Democratic administration to impose Miranda protocols not just on FBI agents conducting criminal investigations (which is what it’s meant for) in foreign countries, but on U.S. military and intelligence agents conducting combat and covert operations. That would be the death knell not of the “torture” over which McCain obsessed but of any effective intelligence collection.

The McCain Amendment passed by a 90–9 margin in the Senate, with all but nine Republicans joining the unanimous Democrats. It became law — incorporated in the Detainee Treatment Act of 2005 — with the signature of President Bush.

This is the background against which we must consider Steve Hayes’s report that the Obama administration has orchestrated the world’s first Mirandized war. A war against a terror network that specializes in sneak mass-murder attacks, in which intelligence is at an unprecedented premium, is a strange setting for inaugurating a practice in which detainees are told they needn’t speak to you and have a right to the assistance of an attorney underwritten by the American taxpayers they’ve been trying to kill.

But expect President Obama to gaze at his teleprompter and assure you that he is not inaugurating that practice.

A couple of "money" paragraphs from this outstanding article:

But here, at last, is the point. The problem is not just that Obama wants to extend Miranda to nearly all captured terrorists. That’s just a symptom. The problem is that he wants to treat international terrorists as suspects in a law-enforcement matter rather than as wartime enemies.
--snip--
There’s no point making this into a controversy about Miranda. After all, if we go the law-enforcement route, there is no question that Miranda applies. The issue is not Miranda, but whether we should view terrorists like Khalid Sheikh Mohammed as mere criminals. If so, then obviously we must follow criminal protocols, and there is no question that Miranda applies. We must tell them they don’t have to talk to us, and that we will get them a free lawyer — who will promptly advise them to clam up. We must also accept that we will no longer get the timely intelligence that thwarts attacks. We must resign ourselves to more dead Americans.

This article is long (3 web pages) but outstanding. Go read it.

With the Supreme Court, beginning in 2004, imposing more and more criminal-justice procedure on the battlefield, the McCain Amendment would almost certainly be used by courts or a Democratic administration to impose Miranda protocols not just on FBI agents conducting criminal investigations (which is what it’s meant for) in foreign countries, but on U.S. military and intelligence agents conducting combat and covert operations. That would be the death knell not of the “torture” over which McCain obsessed but of any effective intelligence collection.

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Back around 1975, Senator Frank Church held hearings on the operation of the CIA and found that -- HORRORS -- taxpayer money was being paid to foreign citizen snitches who had CRIMINAL RECORDS for vital human, on-the-ground intel on the activities of those who were planning the destruction of this country. Church commented at one session that "Gentlemen do not read other gentlemens’ mail." Interesting how Church and his fellow Dimocraps viewed men who would destroy America “gentlemen.” Glad that a**hole didn't serve during the run-up to WWII. (Although he may have handled the "delayed" communication to Pearl Harbor that the Japanese were on the way!)

When he became president, Jimmy Carter fully supported and enforced the Church Amendment. The sorts of people who consort with -- and, more importantly, get cozy with -- the leaders of terrorist organizations are not normally choir boys. Church moved the legislature to PROHIBIT any US funds going to these potential informants. Since it can take upwards of 20 years for these guys to move close enough to the top to be seriously valuable, we had virtually NO humintel on bin Laden's plans for 9-11!

While there are still Church-like imbeciles (Reid, Pelosi, et come to mind) at the levers of power here, I THINK the law has been changed.

While the NSA wiretaps and eavesdrops on US citizens HERE, isn't it comforting to know that in just 15 or 20 years we may be able to thwart a plan hatched THERE for some future 9-11 with information gathered THERE.

Now our guys are required to MERANDIZE enemy combatants NOT wearing uniforms and displaying NO recognizable military patches, etc., etc., all of which, de facto, removes them from the protections afforded under the Geneva Convention. In past conflicts, the Geneva Convention permits the capturing forces to shoot these guys on the spot. Of course, any trooper caught doing that would be up on charges in the morning.

Anybody else see a pattern here?

“Whom God would destroy, He first makes mad.”

I've just searched thru many links, but haven't found the EXACT place & language in this 2005, so-called McCain amendment that explicitly gives Miranda-like legal rights to combatants captured over-seas.

The NRO articles claim that the amendment does so, but they do fail to tell how and why. They do go into the background and details of how Miranda warnings were applied in the case of the 1998 bombing of the U.S. embassy in Kenya.

Searching the 2005 amendment links at the U.S. Senate web pages proved unfruitful. Where in this lengthy amendment is the language that would lead us to think Obama could point at McCain, rather than simply to the earlier, Kenya bombing, field interrogatory practice? Otherwise, there was a recent WSJ piece;How to Handle the Guantanamo Detainees , authored by McCain and Lindsey Graham in which they pointed out that combatants should be tried under the rules of war, not U.S. civil code.

FROM THE WSJ article, referenced & linked, above;

- First, do not confuse war with common criminality. The detainees held at Guantanamo are not common criminals, but warriors the vast majority of whom are fundamentally committed to the destruction of our way of life. The appropriate legal foundation upon which detainee policy should be built is the law of war, along with procedures adapted from our military justice system.

U.S. Senate Roll Call Votes 109th Congress - 1st Session as compiled through Senate LIS by the Senate Bill Clerk under the direction of the Secretary of the Senate Vote Summary Question: On the Amendment (McCain Amdt. No. 1977 ) Vote Number: 249 Vote Date: October 5, 2005, 08:53 PM Required For Majority: 1/2 Vote Result: Amendment Agreed to Amendment Number: S.Amdt. 1977 to H.R. 2863 Statement of Purpose: Relating to persons under the detention, custody, or control of the United States Government. Vote Counts: YEAs 90 NAYs 9 Not Voting 1

Here is the text of Senate Amendment 1977 to H.R. 2863

SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT. (a) In General.--No individual in the custody or under the physical control of the [Page: S10909] United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. (b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. (c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section. (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

And here is the Public Law:

Public Law 109-148 109th Congress SEC. 1003. <> PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT. (a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. (b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. (c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section. [[Page 119 STAT. 2740]] (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.-- In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

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