Today marks the one-year anniversary of President Obama’s promise to close the Gitmo detention facility within one year. This is the one broken Obama promise for which we should be gratetul.
Unfortunately, the warped thinking that stands behind the promise remains almost fully intact, as Bill Otis explains:
The obsession with closing Gitmo was always more about high-minded posturing than protecting the country from terror. It was also a sop to the President’s left flank, the same element that declines to call terrorism by its name, instead labelling it a mysterious “man-caused disaster.” (This is the same element, namely Secretary Janet Napolitano, who assured us that the Christmas day near-successful attempt to bomb an airplane showed that “the system worked.”).
The President’s failure to make good on his promise is a welcome sign that at least a sliver of reality has elbowed its way into the administration’s thinking. But a sliver isn’t enough. It’s not merely that released Gitmo detainees have returned to the battlefield to kill Americans, as the administration acknowledged last May in a Defense Intelligence Agency report leaked to the New York Times. It’s that the entire strategy of treating captured terrorists as ordinary criminal defendants is as incoherent as it is dangerous.
It used to be a sardonic joke among President Obama’s Republican critics that what liberals really wanted was for jihadist detainees to be read their Miranda rights. Republicans should have noticed that the liberals weren’t laughing. The routine, obligatory rendition of Miranda rights is necessarily the administration’s adopted regimen, along with all the other rights previously thought to have been designed for American criminal defendants rather than alien jihadists.
The appearance of Miranda on the battlefield of terror is a startling but hardly singular example of the incoherence of conflating the need to prevent 9/11-style attacks with the need to punish those who undertake them. The former is prospective, and is a function of military and intelligence gathering units. The latter is retrospective, a function of the criminal justice system taking action after a crime has occurred. The two have never mixed and don’t now.
The incoherence of attempting to conjoin these objectives becomes obvious upon merely stating them. Under the plan the President has announced, detainees too dangerous to release but who cannot be tried would be held, so the President says, indefinitely (as long as it’s not in Guantanamo). The problem is that this is patently at odds with the core of the American criminal justice system, which is this: you either charge someone and try him, or let him go. In criminal cases, there is no third option — nor, in a country dedicated to freedom, should there be.
The heart of the problem is conceptualizing jihadism as a criminal enterprise to be handled by prosecution. At some point, a charge would have to be brought and tried. If we dealt with the Gitmo jihadists more nearly as President Bush sought to, they would be regarded as prisoners of war, who under established international law are detained for the duration, and against whom charges are neither needed nor, except for war crimes, ever lodged.
The Supreme Court ruled in Boumediene that, when a Gitmo jihadist is brought to U.S. soil, he can file for a writ of habeas corpus. This triggers a hearing at which the government would be required to either state the basis of a charge that it is able and willing to bring to trial, or to release the detainee.
When President Obama said that there are some terrorist prisoners too dangerous to release but who “cannot be tried,” he did not explain exactly what he meant by the phrase “cannot be tried.” It could mean that the prisoner is practicing “graymail,” i.e., he claims he cannot mount a defense without access to classified material it would endanger national security to give him. But the more likely meaning in the present context is that he cannot be tried because the government does not have enough admissible evidence to have a realistic prospect of proving the case beyond a reasonable doubt.
And what is admissible evidence? Often the most important evidence in these cases is the detainee’s statement during interrogation. But such statements are not admissible in civilian criminal court unless they are, not merely voluntary, but preceded by Miranda warnings. The Supreme Court held as much ten years ago in Dickerson v. United States, in which it re-affirmed Miranda’s automatic exclusionary rule barring unwarned statements even if they are otherwise voluntary.
The upshot is that the failure uniformly to give captured terrorists their Miranda warnings will result in many cases being untriable for want of admissible evidence, even where there is not even a claim of abusive questioning. The lack of evidence will in turn require the jihadists’ release.
So conservatives may have been joking about reading terrorists their Miranda rights. But they shouldn’t have been, because the day is coming when, on account of the President’s incoherent policy, our soldiers in Afghanistan will capture jihadists — at great cost and risk — only to see the government transport and, too often, have to release them inside the country they have vowed to destroy.