MIRANDIZING THE CORPSE: ANDREW McCARTHY
National Review Online
Andrew C. McCarthy
“There is dishonest, and there is asinine. Combine them and you have Attorney General Eric Holder’s congressional testimony on Tuesday”
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 March 18, 2010 4:00 A.M.
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This Corpse Has the Right to Remain Silent
Holder bobs and weaves on legal rights for bin Laden & Co.
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As the Examiner’s Byron York recounts, Holder — assuring Congress that he was not “dodging†questions about Miranda warnings for enemy combatants — dodged madly. Cornered, he insisted to Rep. John Culberson (R., Texas) that there was no need to answer the question of whether Osama bin Laden would be Mirandized on capture because . . . he won’t be captured. Holder guaranteed that bin Laden would instead be killed: “We will be reading Miranda rights to the corpse of Osama bin Laden,†Holder said. “He will never appear in an American courtroom.â€
Now, it’s certainly possible that bin Laden could be killed, as Zarqawi was killed, by an aerial attack. But major al-Qaeda figures have often been captured: KSM, Hambali, Zubayda, et al. If a combatant is disarmed or surrenders, the laws of war require that the we accept that surrender, that we capture rather than kill. Is Holder — who cavalierly accused the Bush administration of war crimes — now suggesting that we refuse to give quarter when quarter is sought? Is he suggesting that we kill someone who has been rendered defenseless?
If he is, that’s quite a turnaround. Osama bin Laden would be dead now if the Clinton administration had allowed the CIA to take him out. That’s what the agency sought permission to do in late 1998, after the embassy bombings. Alas, as the 9/11 Commission explained, the Justice Department — of which Holder was then the No. 2 official — strongly opposed the killing of bin Laden if there was any possibility of taking him alive and bringing him to the United States for a civilian trial (the DOJ having indicted bin Laden in 1998). The Clinton administration’s internal tug-of-war over assassinating bin Laden paralyzed the CIA, which feared having the rug pulled out from beneath it: Would agents be prosecuted if they acted on Clinton’s inscrutable directives? Holder’s return to power is thus Groundhog Day for the CIA, which is now under criminal investigation for actions it had every reason to believe were legal when taken.
In any event, al-Qaeda’s leaders are — we hope — overseas. That means they probably will be first encountered by foreign law-enforcement, military, or intelligence operatives, not by U.S. forces. If bin Laden were to pop up in Pakistan, where U.S. ground troops do not operate, Pakistani forces might very well take him alive, just as they took KSM alive. They are not going to kill him just because the U.S. attorney general has recently had a change of heart about assassinations. If the Pakistanis did capture bin Laden, they would likely (a) invite American authorities to participate in his interrogation and (b) negotiate with us over what would become of him. That is, the questions Holder dodged Tuesday would have to be addressed: Does bin Laden get Miranda warnings, and does he get a civilian trial?
What is even more troubling than Holder’s stubborn failure of imagination is his twisted mindset. According to the Obama administration’s dogma, we must abandon the war footing that we’ve been on since 9/11, go back to approaching jihadist terror as a crime, and treat every perpetrator of a “man-caused disaster†as an ordinary defendant clothed in the Bill of Rights. This shining example of “our values†in action, we’re told, will impress the Muslim world and thus improve our security.
So how impressed is the Muslim world going to be when we summarily kill Muslims so that we can avoid inconvenient questions about Miranda warnings and thereby spare the Obama administration some political angst?
We see this same irrationality in the administration’s position on trial rights. The attorney general insisted that we give the 9/11 plotters all the due-process protections of civilian justice. But what if the terrorists are acquitted? Asked that question, Holder responded that there is no reason to worry about that, because “failure is not an option.†KSM will be convicted and executed, the president and his proxies have promised.
But if advertising “our values†is the whole point of bringing war criminals into the civilian justice system, isn’t it necessary to play it straight in applying the rules of that system? Holder cannot guarantee any trial outcome: In civilian court, KSM is not just presumed innocent, he is entitled to a fair and impartial trial with a jury drawn from the community.
Our system’s bedrock conceit is that we’d prefer to see the guilty go free than risk a wrongful conviction. Thus, prosecutors and other officers of the executive branch are legally and ethically obliged to protect a defendant’s fair-trial rights. But the Obama administration’s chest-beating undermines those rights and arms defense counsel with powerful arguments that the fair trial Holder says we must give these guys can’t happen.
In one of his first major speeches, this attorney general called the American people “cowards.†Holder was talking about race. But lectures about societal relations are not what we have an attorney general for. His job is to make policy about things like interrogation and trial practice.
Holder clearly believes — as he argued in the amicus brief he withheld from the Senate before his confirmation hearings — that our al-Qaeda enemies should be regarded as common criminals: given Miranda warnings upon capture and endowed with all the due-process protections of civilian defendants. This is an ill-advised position, but it’s not an uncommon one. It is predominant on the academic Left. Yet Holder bobs, weaves, and contradicts himself on the question — whatever it takes to avoid giving us a straight answer about his own beliefs. So who is the coward?
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
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