Wall Street Editors Cavalier with Western Legal Legacy

In “Tinkering With Miranda”, the Editors of the Wall Street Journal invoke an argument that had been resolved over centuries of civil and intellectual struggle in law, philosophy and theology, and only reopened when the Bush Administration found existing legal limits, attached to enemy soldiers and criminals, inconvenient in the fight against terrorists. To avoid using a category of combatant not recognized as necessary by the remainder of the international community, Attorney General Holder would seek exceptions to the Miranda rule. To avoid this less dramatic “Tinkering With Miranda”, the Editors (as did Bush, Rumsfeld and Cheney) would have us revise fundamental precepts of western law and jurisprudence. But the goal of enhanced security powers is within reach without doing this, and offers the better part of wisdom to remain within a legal structure which has been evolving for many centuries, especially considering the scant gains afforded by the new category.

In reaction to the terrorist bombings of the World Trade Towers on September 11, 2001, The Bush administration saw a need for intelligence gathering that it felt could not be accomplished under existing domestic or international law. In response, the Bush administration argued a radical revision of international law, an explicitly non-military, non-criminal category, known as the international terrorist. This evil-doer, it was said, with the weapons of mass destruction in hand, did not deserve the protections provided to either military combatants or criminals. Furthermore, in the words of the Editors, their “threat to public safety is much more diffuse and dire than in a typical criminal case,” and “Getting useful intelligence to prevent future attacks may require days, even weeks or months, of interrogation” thus making existing procedures and protections too cumbersome to effect public safety, in their view. Terrorists deserve torture, simply put, existing international law doesn’t allow it, and the need for America’s domestic security is too great to forgo any necessary treatment of prisoners. They would need their own extra-legal category.

But this constitutes a momentous assault on centuries of legal tradition. In the centuries-long struggle to separate the just from the unjust use of violence, states have been constrained, and individuals, alleged criminals, and actual criminals have been assigned human and civil rights. Some of these protect basic human dignity – not to be punished cruelly, not to be starved, nor to be denied access to medical care. Others of these are civil rights – meant to protect those who might actually be innocent – the right of Habeas Corpus, the right to counsel and self-defense, and the presumption of innocence, forcing the state to show cause for incarceration, to name just a few.

Attorney General Holder’s approach is to seek means within the pre-Bush era status of international law, in this case a security exception to the Miranda rights, which would allow law enforcement personnel to interrogate for security information with fewer Miranda limitations.

The Editors decry this approach, so far favored by the Supreme Court, as a plausible way to acquire intelligence from terrorists-as-criminals, as inadequate to protect the public safety. They fear “that the Supreme Court would [not] allow Miranda to be stretched in this fashion.”

In effect, the Editors are arguing that because we cannot be sure that the Supreme Court would support an exception to the Miranda requirements, we should alter the framework of international law, as it has evolved over the last many centuries, by creating a new category, the non-state-terrorist-soldier, requiring civil society, political scientists, politicians and philosophers to begin all over again to define the rights of the accused and the limits of the state for this new category. By then, a future “Bush” would certainly find existing categories limiting, and find cause to invent yet another.

Conservative Vermont commentator Jim Goff, addressing a different issue, charged that liberals “presume that their wisdom exceeds the collective wisdom of all preceding generations.” If this objection suggests a principle of conservative thought, this new category of non-state-criminal-non-state-combatant is radical, not conservative, and a violent breach of the principles on which our country was founded.

The Editors, and those who advocate for this third category and the military tribunal system set up to adjudicate it, seem to care not at all that the purpose of this category is to strip away the evolved rights and responsibilities that have protected individuals from state-excess, that flow to traditional categories of “criminal” or “soldier”, and necessarily , therefore, sweeps up many innocent people, holding them, often for years, torturing them, for information they do not have, and convicting them, of crimes they did not commit. The Editors seem to forget that it was to stop these abuses of the state that civil wars and revolutions, including our own, have been fought over the many centuries of European and New World history. The Editors and advocates of this third category seem to forget that when innocent persons are swept up systematically, and abused, as they have been since 9-11, the system that produces those arrests and abuses is itself unjust, in the same way that corrupt and authoritarian states are unjust, and that the “public safety” we are protecting becomes a cynical parody of itself. Much simpler, and more direct, would be to honor the recognized categories of state and criminal use of force, with an evolved approach to Miranda.

To make of terrorists that they are criminals does not dignify them, as the Editors claim. To me, the label “non-state-combatant” shifts them slightly up the scale to state actor, someone who might be defending bona fide interests of sovereignty. To call them criminals is to duly denigrate their choices and actions, and for those who are justly convicted, appropriately commits them to the long term impotence of penal inmate.

The irony of the Bush policy, that has done so much violence to our legal culture, is that everything it wanted to accomplish could have been accomplished without its extra-legal activities. We don’t need warrantless wiretaps, domestic security letters, or an intermediate “terrorist” category. We need a vigilant, competent, professional police and military, backing up a compassionate and just society whose institutions honor and promote human and civil liberties, and try to help impoverished people escape hopelessness. Now there’s a strategy to defeat terrorism.

Stephen Marshall