Miranda warnings for jihadis?

Andrew McCarthy:

"Isn't the main issue," Justice John Paul Stevens plaintively asked, "the fact that it has taken six years" to resolve the question whether alien enemy combatants "have been unlawfully detained" at Guantánamo Bay?

For the Supreme Court hearing arguments last week in Boumediene v. Bush, that should not even be a relevant issue. (Lakmar Boumediene is an Algerian who emigrated to Bosnia in the 1990s. He was arrested for plotting to attack the U.S. embassy in Sarajevo and turned over to the U.S military.) If it is lawful to imprison captured enemy operatives without trial until the end of hostilities, as it has been for centuries under the laws of war, then it should not matter how long they've been held. Thus did Solicitor General Paul Clement gamely counter that emphasizing the six-year delay serves only to "cloud the basic constitutional question before this Court."

Yet, for most of the morning it was difficult to remember what that issue was. Not for want of skilled lawyering; Clement and his adversary, former (Clinton administration) Solicitor General Seth Waxman, gifted advocates, were at the top of their very considerable games. No, the problem is that the basic question is too bracing: Does the Constitution of the United States afford any due process for alien jihadists even as they conduct a terror war against Americans?

Waxman is far too clever to claim that the Framers somehow designed a Constitution which entitles enemies of the American people to use the courts of the American people as a weapon of their war against the American people: that the judiciary is not a governmental component of a nation at war but rather an impartial supra-tribunal whose only allegiance is to "the law." So the combatants' side resisted couching their claim as an entitlement of the enemy.

We were instead serenaded with a song of our constitutional commitment to that holiest of rhetorical holies, the rule of law. Even in the midst of hostilities, Waxman maintained, there can be no "law-free zones." Not at Gitmo, and not, as Chief Justice John Roberts's piercing questions teased out of Waxman's euphonious sound-bite, in any place on the globe where the United States fights war and takes prisoners. To the contrary, there must always and everywhere be a judicial process for reviewing military detention: a process that is both meaningful and, Waxman stressed, swift--deftly pouncing on Justice Stevens's "main issue."

...

The solicitor general had a very good case. Let's leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus--i.e., to challenge their military detention before the civilian courts. Let's instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and "the base line" of 1789, when the Constitution enshrined habeas rights for Americans.

...

The articles goes on to recites many of the rights and protections that have been afforded the enemy's unlawful combatants. The question that should be asked John Paul Stevens is whether he wants to convey Miranda rights on the enemy and, if not, why not. That question would put in context the silliness of this argument over habeas corpus, because it will come up in the follow in cases. If we have to give Miranda warnings to Khalid Sheik Mohammad, it is pretty clear that we will not learn about the enemy's planned attacks on non combatants. That is what is really at issue here.