The Wrong Standards for Tsarnaev

After reading yesterday’s accounts in the Wall Street Journal, we see the consequences of the Left’s counter-war on the war on terror coming to fruition in the inept mishandling of the interrogation of the younger Tsarnaev.

First, the Obama administration, buying the idea that terrorism is really a problem for law enforcement, decided not to designate the surviving Tsarnaev brother as an enemy combatant and to conduct his interrogation under the rules reserved for garden-variety criminals. The Obama Administration limited its ability to ask questions of Tsarnaev without Miranda warnings or a defense lawyer present only to a narrow “public safety” exception, which runs only to questions about imminent dangers and crimes.

Now the news comes that the person who actually read the Miranda warning to Tsarnaev wasn’t even an FBI agent, but a U.S. magistrate judge (magistrate judges are sort of like junior federal judges — they are appointed by the courts to assist them, but they are not real judges, and are subject to revision by real federal judges). 

This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch. The right of the courts to affect the warnings and conditions of interrogation stems only from their control over the criminal trial of the suspect. Miranda itself is only a declaration by the courts that they will exclude from evidence any confessions received without a warning. Under the Constitution, the President is responsible for the enforcement of the laws, not the courts — the courts’ constitutional job is to decide cases and controversies that arise under those laws.

But the Obama Administration apparently did not protest very hard against this violation of the separation of powers. And we can see why.

When the war on terror began, the Left’s immediate reaction was to domesticate it by subjecting it to the same rules that apply to domestic crime. They have waged long struggles in the courts to invite judges to intervene in military and national security decisions that have never fallen within the review of the courts in any previous war. They succeeded in having the federal courts, for the first time in any American war, exercise habeas review over a military prison camp, at Guantanamo Bay. 

If you live in that world, why not have judges intervene in the decision to read Miranda warnings to terrorists, even before the executive branch has decided the question and even before any case has come to the court? Just as Obama is trapped by ideology on the Miranda question, he is equally trapped by his anti-war roots in allowing judges to intervene where they have no right to tread. Our national security will only suffer as a result.