Mirandize this

Charles Krauthammer, always managing to be a smarmy jackass, has a column today in the Washington Post about "updating" Miranda rights to confront the "jihadist war" that colors his entire worldview. Fisking the entire thing would be an exercise in raising my blood pressure, so instead I'll take the basis of his argument and work from there.

Essentially he believes that the act of Mirandizing a terror suspect will allow him to stop talking, preventing authorities from gaining valuable information on other operations, allies, etc. Krauthammer seems to believe that it is the act of saying the Miranda warning that confers the rights, rather than being a mere manifestation of something that is already in place. The final paragraph, in its entirety:

"My view is that we should treat enemy combatants as enemy combatants, whether they are U.S. citizens (Shahzad) or not (the underwear bomber). If, however, they are to be treated as ordinary criminals, then at least agree on this: no Miranda rights until we know everything that public safety demands we need to know."

Miranda rights are not a speech act (see J.L. Austin); they are the rights that a suspect has, and their being recited is a formality to ensure that the suspect is aware of their rights. But it is highly suspect to believe that anyone plotting an action against the U.S. and her citizens is unaware of the ability to not answer questions if caught; frankly it's absurd.

What's more, it forgets a crucial aspect of what Krauthammer would term "jihadist" psychology, that is to say that those low-level functionaries who attempt to carry out these attacks are generally more than willing to talk about why they do it, how they do it, etc. A mission from God ensures that no matter what is revealed, the final result will be positive, there is no need for secrecy. They would be well-served to keep their mouths shut, but I doubt that many have that ability. Like all those who feel that they are going up against an entire society, obstinate silence will oftentimes be followed by a torrent of words and information, brought out by the feeling that finally, for once, someone is listening and wants to hear what one has to say (even if that person listening happens to be a federal law enforcement agent or military personnel).

Miranda is a symbol, not an actual act; it allows us to preserve our national essence. By not issuing a Miranda warning, you are not removing the suspect's ability to be silent, you are merely demonstrating the ability of law to rule over people's actions. It is certainly symbolic, but symbols can still be important. There is more to be gained by applying the rule of law to all than there is in moving toward a society that divides justice into "us" and "them". Unfortunately, this black-and-white division is exactly what Krauthammer and those who think like him are after. Opposing this outlook by pointing out the flaws in the reasoning is only one form of resistance, but hopefully it can be a useful one.