• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Fighting Terror Through Courts: Not Good for Courts, Not Good for Safety

    Since coming into office the Obama administration has insisted on approaching all terrorist attacks as a law-enforcement-only problem. For purely ideological reasons, Attorney General Eric Holder has refused to learn what the rest of the country already learned from the 1990s and 9/11: that this unconventional enemy requires the government to use all lawful tools at its disposal, including holding some terrorists captured in the U.S. as enemy combatants.

    But now that he is in power and has some actual responsibility, Holder is beginning to learn the limits of the law-enforcement only approach. Unfortunately he has decided to change our law enforcement system to fit the fight against terror instead of treating it as the war that it is.

    So this past Sunday, and again yesterday, Holder said we needed to “update” our Miranda warning rules to deal with “with international terrorism.” This is not only unwise but also most likely unconstitutional.

    The Miranda warnings that law enforcement officials are required to read a suspect once he is taken into custody are court-created extensions of our 5th Amendment Constitutional rights. If law enforcement forget or intentionally choose not to read the suspect his Miranda warnings, then the government usually cannot use those un-Mirandized statements at trial. Behind the government’s use of Miranda is an underlying assumption: The case is going to trial, and the government wants to preserve the possibility of using the defendant’s statements against him in its case. Thus, Miranda is a trial tool—not a national security tool.

    Courts have also created a “public safety exception” but after the Christmas Day Bomber and now the Times Square Bomber, Holder has discovered that this exception is not enough to properly protect the country. So now he wants a legislative change to our criminal justice system. But Miranda is a court-created Constitutional doctrine. It would be unconstitutional for Congress to change it.

    There is an existing constitutional way to protect our country: Congress’s Authorization for Use of Military Force and subsequent court cases allow the President to designate appropriate terrorist suspects captured in the U.S. as enemy combatants (at first) and interrogating them at length without Miranda or an attorney.

    Preserving the Miranda-less interrogation option does not preclude the government, after appropriate interrogation, from then deciding to send the suspect to trial in federal court or a military commission.

    Heritage Foundation Senior Legal Fellow Cully Stimson writes:

    After 9/11, the White House rightly shifted the focus of counterterrorism operations from investigating attacks to preventing them. By being more concerned about safeguarding the opportunity to prosecute suspects than stopping terrorist plots, Holder is returning to the wrong-headed strategy that characterized this nation’s pre-9/11 approach to fighting terrorism. The Attorney General has forgotten that intelligence gathering, at the outset of capture, is more important than preparing for a trial.

    Posted in Legal [slideshow_deploy]

    5 Responses to Fighting Terror Through Courts: Not Good for Courts, Not Good for Safety

    1. MJF, CT says:

      Here again, the Administration is more concerned with the "rights" of the terrorist than the safety of the People. If you captured Adolf Hitler, would you have read him Miranda Rights? Of course not! These are TERRORISTS not thieves. They are not supposed to be tried in our courts, they belong to the military. We need to stop these Liberals who have no concern for the People's safety.

    2. Jim - Ohio says:

      America had better wake up. Washington is WALL-TO-WALL anti-American.

      Too many good people aren't paying attention, thinking it'll all work out, it always

      does; it's just politics. WELL, that's what these cretins are counting on. In November we must change the direction and rid our country of this vermin.

    3. Lioness, Wisconsin says:

      Eric Holder is incompetent. He's a voice without credibility and he needs to be removed from any position of prominence. He further exacerbates this administration deepening credibility deficit.

    4. West Texan says:

      Holder and his boss apparently see today's Islamic terrorists as organized criminals who's vice is hate. After all, these murdering thugs aren't represented by a particular sovereign country. To western thinkers, such fanatical jihadist don't have defined geographical boundaries or national flag. Such groups like al Qaeda, however, do posses an international pool of disenfranchised supporters. They're a rebel army carrying out attacks against a declared enemy to their fascist inspired religious ideology. It's ironic that Obama voices objection to Arizona's new immigration law that he believes oversteps federal authority. In fact, his own justice department head interferes with a legitimate military concern. Just another example exposing our so called commander in chief's complete lack of knowledge and experience for the office he holds.

    5. Pingback: Gavel Grab » Monday Media Summary

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.