Obama Justice Department decision to Mirandize high-value detainees will certainly have adverse and deadly consequences.
If you did not previously understand that President Barack Obama and his administration have taken the Global War on Terror, a military counterterrorism operation, and transmogrified it into the Overseas Contingency Operation, a law enforcement measure, surely the news that Obama’s Justice Department has demanded that detainees in Afghanistan be Mirandized should put you over the edge.
That’s right. They have the right to remain silent. They have the right to an attorney. It’s like Law & Order, only Jerry Orbach is wearing combat boots and the “dunk-dunk” sound effect has been replaced by the occasional report of gunfire.
Let me be perfectly clear — the privilege against self-incrimination, found in the Fifth Amendment of the United States Constitution, should never apply to those who dream of the destruction of the United States America, or the death of her people. Plain and simple.
When he was first apprehended, Khalid Sheikh Mohammed refused to answer questions, going so far as to say that he would talk only after he reached New York City and consulted with legal counsel. Indeed, if Barack Obama had been president at that time, none of the high-value information we received through interrogations of that animal would have been available to agencies fighting terrorism here at home. If Barack Obama had been president at that time, American lives would have been lost directly as a result of his destructive lack of commitment to keeping this country safe.
Former CIA honcho George Tenet wrote the following in his recent book, At the Center of the Storm: “I am confident that we would have obtained none of the information he had in his head about imminent threats against the American people.” The information which was extracted from his head, as we now know, prevented a 9/11-style terrorist attack on Los Angeles which could have cost thousands of American lives. Khalid Sheikh Mohammed laughed at his military tribunal in Guantanamo Bay, in disbelief that we actually provided him with a day in court. This man would never have talked if the policies enacted by Obama’s Justice Department were in place, if he were provided with the right to remain silent.
Miranda, rooted in the Fifth Amendment, opens up a whole new can of worms. An individual’s silence or speech while in custody is protected by the privilege against self-incrimination, a privilege extended to defendants prohibiting the admission of statements–or lack thereof–obtained during “custodial interrogation” unless procedural safeguards had been employed to protect it, a privilege which carries with it the implied assurance that silence in the face of government questioning will not be penalized, that the right to remain silent will not be encumbered by the government through comments made at trial about a defendant’s decision to exercise that right.
In Miranda v. Arizona, the seminal Fifth Amendment case from which the Miranda rights draw their name, “custodial interrogation” was defined as any questioning brought on by law enforcement officers after an individual has either been taken into actual custody, or deprived of his freedom in any significant way. Since Miranda in 1966, however, the scope of Fifth Amendment protection for individuals has expanded — the the protection against self-incrimination could extend even before an individual has been taken into custody, and even the Miranda warnings themselves could be perceived as relatively ceremonial.
In United States ex rel Savory v. Lane, a 1987 case which questioned whether a prosecutor could cite a defendant’s silence as substantive evidence of his guilt, the Seventh Circuit Court of Appeals determined that the privilege against self-incrimination applied to the defendant . . . even before he was remanded into custody. In that case, the defendant had refused to speak with police officers when first asked about the murder of two teenagers and, even though the silence came at the start of the investigation and before the defendant was taken into custody, the court nonetheless held that the self-incrimination clause applied not only to a defendant’s statements or silence in custody and before trial, but also to a defendant “even before arrest.” In 2000, the Ninth Circuit Court of Appeals in United States v. Whitehead noted that the right to remain silent derives from the Constitution and not the Miranda warnings, and held that regardless of whether any warnings are conveyed, any comment in court regarding a defendant’s exercise of that right violates the Fifth Amendment. In that case, the defendant was never apprised of his Miranda rights as customs officials searched his vehicle and found drugs along the U.S.-Mexico border, yet the government was nonetheless barred from commenting at trial on any communication or lack thereof.
Now, there are other decisions from other circuits which lean in the opposite direction, but the serious potential for problems is certainly there. Regardless, it shows that, once again, this administration has made a major national security decision without weighing any of the possible downhill consequences. If this truly is to be treated as a law enforcement operation, if these high-value detainees are going to be brought to American soil to stand trial, the government will be absolutely, positively handcuffed with regard to what they’re able to do to bring a conviction, and the terrorists, the ones actively working to snuff out American lives, will be given yet another advantage.
Under Miranda, the terrorist who refuses to answer questions while being interrogated and after being apprised of his rights is fully within his right to do so. Under Savory, the terrorist need not be in custody, as his right to remain silent could extend even to the battlefield. Under Whitehead, the terrorist need not even be apprised of his–I can’t believe I’m even writing this–constitutional rights in order to enjoy them. Essentially, the terrorist who stands silent in the face of any sort of questioning, in any sort of situation, must be treated as if he has asserted his right, under the Fifth Amendment of the United States Constitution, to remain silent.
Mark my words — Barack Obama’s decision to order detainees Mirandized will unquestionably cost American lives, if not here at home because all effective interrogation of high-value detainees is off the table, then on the battlefields in Afghanistan, Iraq and beyond, as murderous jihadists captured in the act of killing or attempting to kill American soldiers have no reason whatsoever to even apprise our troops of anything they know, from the position of other terrorists to the location of road-side bombs. We cannot torture them. We cannot waterboard them. We cannot slap their face or annoy them with loud music. And, now, they can feel all warm inside knowing that their continued silence in the face of any scrutiny or any questioning, anywhere, cannot even garner them a legal slap on the wrists here in American courts.
This president’s actions with regard to the ongoing war against radical Islam have been worse than reckless. Through his detente-at-all-costs approach to foreign policy, he has abandoned allies and emboldened enemies. Through the games played with our intelligence community by his flunkies and his party, he has left our intelligence officials with no reason whatsoever to put their neck on the line to gather information which could prevent attacks on America, American people, or American interests. And through this latest action, he has actively placed the lives of our brave fighting men and women in jeopardy, if not the lives of innocent American civilians here at home.
When America is attacked again–and I firmly believe it is no longer a matter of “if” but “when”–Barack Obama will undoubtedly attempt to pass blame onto his predecessor as he has done with nearly everything else from the economy to energy costs. His recent speech at the National Archives already laid the groundwork for eventually blaming the creation of the terrorist detainee facility in Guantanamo Bay, Cuba as the cause of jihadist rage across the world, when in reality the facility came after the 2001 attacks on New York City and Washington, D.C., after the 2000 attack on the USS Cole, after the Khobar Towers bombing in 1996, after the first World Trade Center bombing in 1993.
To Barack Obama and the Democrats, however, national security and the safety of our troops is a political game. How else do you explain the flap over the detainee photos? How else do you explain the destruction of morale in the intelligence community? How else do you explain the knee-jerk decision to shutter Gitmo? How else to you explain the sudden reemergence of the Armenian Genocide issue, brought up by Nancy Pelosi in 2007 at the height of the Iraq war? Barack Obama and his entire administration and party are playing political games with American lives, and each and every one of them must be held accountable for each and every action taken to erode national security and give every possible advantage to those who wish to do us ultimate harm.