How should we treat those arrested here - like the apparent perpetrator of the abortive Christmas bombing on a Detroit-bound flight? Like soldiers? Ordinary criminals? Or some other sort of person - an `unlawful combatant', perhaps? The Fourteenth Amendment says they are persons and as such are subject to our constitutional regime. The Editorial Board of the New Jersey Law Journal concurs with the approach embraced by U.S. Attorney General Eric Holder.
'Unlawful Combatants' Have Miranda Rights
New Jersey Law Journal
March 26, 2010
Criminal, soldier or unlawful combatant? That trichotomy frames the current hyperbolic debate about the Christmas Day bomber and his Miranda rights. The critics assert that a governmental policy of treating prisoners like Umar Farouk Adbdulmutallab as criminals within the criminal justice system is being soft on terror. We are "at war," we are often told.
The "we are at war" stance was problematic from the first. That is because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war "must at all times be protected, particularly against acts of violence or intimidation." The Convention in Article 14 states that such prisoners are to be "entitled in all circumstances to
respect for their persons and honor."
Therefore, when the Bush administration formulated its policy, it declared that terrorists are not prisoners of war but instead are "unlawful combatants" not entitled to review by any court of the United States. And, impliedly, as unlawful combatants, not entitled to respect for their persons and honor.
We are told that treating the apparent perpetrator of the failed airplane bomb plot as a criminal is a sign of weakness, although nearly 200 persons accused of terrorist acts were so treated in the Bush-Cheney years. The strongest appeal is that the accused has been given rights to which he is not entitled — the right to silence and the right to counsel. The suggestion is that telling Abdulmutallab he has the right to remain silent and to counsel deprived us of information he otherwise would have given. We are aware of no evidence for such a statement.
Attorney General Eric Holder has responded in a sharply worded letter to Senate Minority Leader Mitch McConnell, in which he elaborates:
This editorial was published in the March 29, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
The "we are at war" stance was problematic from the first. That is because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war "must at all times be protected, particularly against acts of violence or intimidation." The Convention in Article 14 states that such prisoners are to be "entitled in all circumstances to
respect for their persons and honor."
Therefore, when the Bush administration formulated its policy, it declared that terrorists are not prisoners of war but instead are "unlawful combatants" not entitled to review by any court of the United States. And, impliedly, as unlawful combatants, not entitled to respect for their persons and honor.
We are told that treating the apparent perpetrator of the failed airplane bomb plot as a criminal is a sign of weakness, although nearly 200 persons accused of terrorist acts were so treated in the Bush-Cheney years. The strongest appeal is that the accused has been given rights to which he is not entitled — the right to silence and the right to counsel. The suggestion is that telling Abdulmutallab he has the right to remain silent and to counsel deprived us of information he otherwise would have given. We are aware of no evidence for such a statement.
Attorney General Eric Holder has responded in a sharply worded letter to Senate Minority Leader Mitch McConnell, in which he elaborates:
"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.
"Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system."We concur.
This editorial was published in the March 29, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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