A brief agaisnt McCain

Andrew McCarthy describes why many conservatives are troubled by having a President McCain. It is not the typical emotional rant, of which there have been too many.

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It’s a foolish idea, but it’s the sort of thing one expects from an irascible senate maverick — an old Washington hand who is quick to exploit the trendy concern-of-the-moment, demagoguing anyone who dares worry about the bigger picture. Take the senator’s “McCain amendment,” the 2005 legislation that extended Fifth Amendment rights to terrorists overseas. In its 2000 Dickerson decision, the Supreme Court held that if a person has a Fifth Amendment privilege, he is entitled to Miranda rights — i.e., the right to an attorney, at the expense of the American taxpayer, during all questioning. That means any terrorist we capture overseas could plausibly claim Miranda protection under the McCain amendment. In short, leaving aside that the chief effect of McCain’s grandstanding was to intimidate our interrogation officers (stoking a fear of investigations that prompted purchases of litigation insurance and a drastic reduction in intelligence-collection), his legislation could eventually shut down interrogations. A future court, or even Justice Department, could very well read the McCain amendment in conjunction with Dickerson to require that defense attorneys be inserted into the interrogation mix shortly after capture — long before the “advanced psychological techniques,” with which the high-minded senator plans to replace those “abusive” Bush tactics, have any chance to work.

When confronted with this possibility, Sen. McCain and his backers snicker that such suggestions are absurd. Critics are duly expected to melt, and many of them do. Some of us, however, have actually had to fight the jihad in the courtroom. That the senator clearly had no intention whatsoever to lay the groundwork for Mirandizing the battlefield will, you can bet, have little impact on a judge asked down the road to rule on the admissibility of a terrorist’s confession or on a jihadist’s claim that his McCain Amendment rights have been violated. If you think otherwise, you haven’t been following the federal courts for the past half-century.

Senate Democrats serially insist that the McCain Amendment prohibits waterboarding. Sorry to break the news, but the legal argument that it requires Miranda is no less viable. That’s why the legislation’s ambiguity was so irresponsible. McCain’s campaign against coercive interrogation methods — tactics that saved American lives after 9/11; tactics, such as waterboarding, that were rarely ever used and that had been stopped two years before the McCain amendment; and tactics that Sen. McCain himself has conceded are excusable in a truly dire national emergency — was reckless. Sure, the media ate it up, just like they’ll eat up the League of Democracies, the new OSS, and the new wave of overtures to transnational progressives in Europe. But it’s reflective of an unattractive heedlessness.

Similarly, Sen. McCain wants to close the terrorist holding facility at Guantanamo Bay. Interrogations there have produced intelligence that has saved American lives. Bringing the terrorists detained there into the United States would risk vesting them with the same due process rights as the American citizens they are pledged to kill — including generous discovery of our intelligence, and our methods and sources for obtaining it.

What is the upside to giving them this precious information? For Sen. McCain it is — again — what he sees as America’s reputation in the world. But look: America has selflessly freed millions of Muslims from tyrannical regimes. Most of us are a lot more concerned about protecting Americans than about America’s reputation in Saudi Arabia, China, Russia, Europe, and the rest of the vaunted “international community.” The world doesn’t hold a candle to our record of promoting human freedom (to say nothing of our relieving Europe of its duty to fight in, and pay for, its own defense). And the world’s elites will continue giving us no credit regardless of McCain’s exertions. If Gitmo upsets other countries, the problem lies with them, not with Gitmo.

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There is much more. This is an example of another area where we will have to fight a President McCain. He may be willing to fight in Iraq, but he would be turning over intelligence to our enemies with his policy proposals on Gitmo.