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Why we should deal with terror as warfare, not law enforcement

Sometimes an American politician will say something that reveals the true depth of his dangerous disregard for the basic requirements of constitutional government. In a conversation on Don Imus’s show John McCain reportedly declared it “a serious mistake to have read the suspect in the attempted Times Square car bomb his Miranda rights.” “Obviously that would be a serious mistake…at least until we find out as much information we have…Don’t give this guy his Miranda rights until we find out what it’s all about.”

Apparently McCain actually believes that so-called Miranda rights are extended as some kind of favor from the government. In fact, they arise from the Constitution’s clear statement that “no person…shall be compelled in any criminal case to be a witness against himself” and that “the accused shall have the Assistance of Counsel”. Reasoning quite logically that these rights are “put in jeopardy…through official overbearing…” the U.S. Supreme Court made informing people of those rights a standard part of police procedure in the handling of detainees. (Miranda v. Arizona)

McCain speaks as if it makes sense to ignore this requirement when dealing with those suspected of seriously threatening crimes. Actually, a real concern to preserve constitutional and lawful government requires the opposite conclusion. Respect for the standards of constitutional and lawful government is more imperative when passions are stoked in reaction to the most repugnant and threatening offenses. Leaders with the best interests of stable democratic self-government at heart could therefore never publicly suggest, as McCain has, that the viciousness of a crime suspends the constitutional rights of those detained as suspects. Though fear and loathing move even an overwhelming majority of the people to clamor for action that ignores constitutional right, the commitment to constitutional self-government is supposed to counteract the resulting mobocratic spirit.

Senator McCain’s statement clearly reveals his lack of concern for this commitment. It is another indication that certain currently dominant elements of the American political elite no longer regard the preservation of constitutional self-government as their primary duty, despite their sworn oath to make it so. In fact they seem anxious to get to the point at which the American people take it for granted that the suspicion of complicity in terrorism creates an acceptable presumption that the accused has no rights the government must respect.

While people like McCain hurry things along toward that point, their putative opponents in the Obama faction move to apply the terrorist label to anyone who may disagree with their push to establish pervasive government control over every critical component of the nation’s life. Pro-life Americans are terrorists. Those who oppose the Obama faction’s takeover of the health sector are terrorists. Tea Party activists are terrorists. Returning veterans are terrorists. Opponents of gay marriage are terrorists. The list goes on. It takes but a minimal application of common sense to see that the label ostensibly prepared to deal with nasty, bad Islamic terrorists is actually intended as a plausible excuse for removing the presumption of constitutional protection from anyone who dares politically to oppose the general offensive against American liberty that is now well under way.

The framers of the constitution wisely understood that no one is likely to retain their unalienable rights once anyone is systematically assumed to be without them. Unlike the privileges and immunities referred to in the Constitution’s 14th amendment, the rights meant to insure against the abuse of government’s law enforcement powers are ascribed to “persons” not citizens. So government at all levels is constrained to respect the rights of anyone subject to its power, including foreign nationals and stateless individuals.

The suspect in the New York terrorist incident is reportedly a naturalized U.S. citizen. This further highlights the danger Americans face if we accept the suspension of rights Senator McCain’s words are meant to encourage. Ironically, McCain has in the past been so solicitous of the rights of illegal aliens that he decried constitutionally respectful steps to enforce existing immigration laws against them. Unregulated immigration harms the sovereignty of the America people as a whole. Creation of a label that suspends their rights harms the sovereignty of the American people as individuals. Could it be that some forces now prominent in our politics don’t care if rights are respected or cast aside, so long as it contributes to the destruction of America’s liberty?

There is of course a way to deal effectively with terrorists while preserving respect for the requirements of constitutional justice. First we must recognize the fight against terror as what it is- warfare not law enforcement. Then we prosecute the war with the aim of destroying the enemy’s war making capacity i.e., not with the aim of apprehending and prosecuting suspected terrorists. This is the opposite of the course the Obama faction and its sham opponents are pursuing. But, contrary to their view, people actually engaged in war against the United States of America are properly killed in combat or interned to keep them out of combat as long as the war continues (as at Guantanamo during the G.W. Bush administration.) By warring against us they initiate the trial by combat. By combat may they be tried and found wanting. To them no process is due except the effective prosecution of the war that defeats their aims.

Procedurally this would mean designating the theaters of combat, and declaring that people encountered in them will be dealt with according to the treaties and conventions we have adhered to regarding the prosecution of warfare. People captured outside those designated theaters would be treated as criminals and our government’s treatment of them would be subject to constitutional strictures. In light of this distinction, one of the strategic objectives of U.S. policy would be to deploy our best efforts to identify and deal with the enemy within the designated theaters of war. This would allow more efficient destruction of the terrorist war making capacity, while also maximizing efforts to keep American territory free of the presence and activity of the terrorists. To achieve this we must combine aggressive intelligence work, with efficient open or covert preemptive action.  It also requires effective border security and strict enforcement of U.S. immigration laws.

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  • Chiu Chun-Ling

    Cogent and to the point, as always. Given my own recent experience with being deprived of Constitutional rights, I’m quite sensitive to the problems that arise from failing to clearly distinguish between acts of war levied against the United States and exercise of the rights guaranteed to all American citizens.

    Let acts of war be treated as acts of war, and we will find far less need to deprive Americans of the liberties that hundreds of thousands have given their lives to protect.

  • DixHistory

    Alan,
    Congress again has not done its job of declaring war in the correct manner if at all. If they did so, I think those found outside the battle field could and should be tried as spies.
    http://homepages.rootsweb.ancestry.com/~texdick/obama.htm

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