Osama bin Laden, you have the right to remain silent. You have the right to an attorney, and if you cannot afford one, an attorney will be provided. Do you understand these rights?
Well, we don't.
During a visit to Afghanistan, Rep. Mike Rogers, Michigan Republican, witnessed captured foreign fighters being read Miranda warnings. The Justice Department says this is done "to preserve the quality of evidence obtained." The practice began during the Bush years when congressional challenges to the administration's detainee policy required building criminal cases using "clean" evidence that could stand up in U.S. courts.
This looks like a creeping return to 1990s counterterrorism practices that failed to prevent the Sept. 11 attacks. The 9/11 Commission found that policies adopted in the Clinton years - which limited intelligence sharing lest criminal cases be compromised - led to tragedy. There was an overabundance of caution to avoid evidence being tainted, and it was an open secret in the FBI that sharing too much was a career ender.
But in the modern, borderless, fluid international terror fight, federal agencies need to be able to interoperate freely and share pertinent information quickly. Re-creating the "Chinese Wall" between intelligence and criminal agencies could again lead to fatal results. A situation could arise in which a detainee has one status when questioned by the FBI, another before the CIA and a third with the military. This is clearly unworkable, especially when hot intelligence needs to be shared and exploited immediately by all three. Worse, if a terrorist believes he has a "right" to remain silent, the odds are much greater he will do just that, which inhibits intelligence gathering.
The more fundamental question is the nature of the conflict. One might ask from where these due-process rights derive for someone who is dedicated to destroying the Constitution that enshrines them and who has never lived under our laws. We no longer are sure if this is a war, an overseas contingency or the pursuit of global criminal justice. We could return to the times when the law enforcement paradigm becomes so dominant that we repeat the fiasco of when Sudan offered up Osama bin Laden on a platter in the late 1990s but he went free because we "had no papers on him." That is the problem when you treat intelligence as evidence, detainees as suspects and terror attacks as criminal offenses instead of acts of war.
President Obama has taken a stand against Mirandizing. In a March 22 "60 Minutes" interview with Steve Kroft, he said, "The whole premise of Guantanamo promoted by Vice President Cheney was that somehow the American system of justice was not up to the task of dealing with these terrorists. I fundamentally disagree with that. Now do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not."
If Mr. Obama meant what he said, he should look into this matter and correct it. If he chooses to let it continue, he should be clear with the American people that terrorists in fact do deserve Miranda rights - and to be treated just like a shoplifter down the block.