The modern Democratic Party owes thanks on its knees to William Jefferson Clinton. For two decades and more, Republicans were able to fairly identify Democrats as the ones most likely to turn over the keys to the city to the Soviets, as long as everyone agreed to group counseling afterward (drum circles optional). On everything from ending crime to national security, Democrats were the party of yes, but, while Republicans were the party of yes. In an important way, Clinton taught America it was safe to elect Democrats to office — granted, by random bombings of aspirin factories and executing retarded men — and that Democrats would not look for root causes of rape, murder, and vicious aggression against Americans abroad.

The exception to this is terrorism. Given that the Obama Administration has worked so hard to ape so many Bush policy initiatives in the War on Terror, or the Holding Action on Human-Caused Problems, or whatever it’s called these days, one might almost forget that in caricature, Republicans believe in bombing terrorists to death, and Democrats continue to believe that President Clinton’s midnight basketball and gentle remonstration approach to terrorism is the right one. (These really are caricatures: President Bush was a sort of seamless garment fellow, and President Obama has no problem using unmanned drones to bomb innocent civilians in Pakistan.)

The essential lesson of the Clinton Administration was that you can lip-bite, diddle, and autoeroticize yourself through two terms in office, but only if America thinks you will rain down unholy Hell on its enemies (or, again, aspirin factories). All signs point to the Obama Administration having a single policy goal above all others — getting reelected — so it’s kind of surprising that they slipped on this one:

[The] Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

There are two obvious points to make here. First, to give Attorney General Holder the benefit of the doubt, this might be an attempt to make certain that the folks breaking the laws of war by firing on our troops while not wearing distinguishing insignia or uniforms can be tried, sentenced, paroled, and eventually end up doing community organizing for Democratic politicians and causes. (Of course, he’s also a Clinton leftover, so maybe the tendency to look for any excuse to pardon criminals never faded.)

Second, this is simply dumb on a scale that whole factories of clawhammers couldn’t replicate if they spent decades at work.

The history of the Miranda decision is actually an interesting peek into the sort of do-gooding judicial legislative activity in which the Warren Court excelled. (Legal reasoning, judicial restraint, and even vague attempts to hide the fact that the Court saw itself as the Other Article I were not in its bag of tricks.) Beginning decades before Earl Warren leveraged his way into a seat for which he wasn’t qualified, the Supreme Court decided that the Fourteenth Amendment actually meant that large swaths of the Bill of Rights applied to the States. At the time, this was a controversial decision, but because Congress and the President lacked the will or inclination to stop it, the Court eventually arrogated itself the power to impose a number of restrictions on the States not actually located in the text of the Constitution.

The Warren Court, which believed itself a force for good, as all men do, took this several steps farther, finding ideas like mandated proportional representation in State legislatures, provision of counsel to indigent criminal defendants, and license to sell birth control to all comers so important, they simply couldn’t wait on legislatures to compromise their way to the right results. Some have praised these results; some have defended the methods by which those results were achieved. A discussion of those issues in more than passing is not germane to this topic. What is germane is what came next.

Having decided to shove numerous restrictions, real and imagined, applicable to the Federal government or not, down the throats of the States, the Court reached the Miranda case with a full head of steam. Insofar as the underlying policy choices the Court had imposed on the States were logical, the step taken in Miranda — to force the States to offer the same prophylactic warnings to criminal suspects that the Federal Bureau of Investigation did — seemed logical as well. If the States must play by the same rules as the Feds, why not compel them to act like the Feds?

For all the attendant ridiculousness in the Miranda decision, there was at least a noble goal. (Hell, good intentions, road, paving.) The Court sought a way to make certain that criminal defendants — men and women arrested and put through an enormous amount of stress in a short time period — would know their Constitutional rights (real and Court-made) to protect themselves.

And that is why the Obama Administration’s decision to offer Miranda rights to terrorists and illegal combatants captured on foreign battlefields is somewhere outside of insane. The Third Geneva Convention does not require anything remotely like this, because the Convention presumes that prisoners of war will be confined for the duration of any conflict and released at its end. (That puts to the side the fact that under Article 4 of the Convention, irregular fighters who do not wear identifying insignia are jeopardizing civilians by hiding among them, and are considered war criminals not covered by the Convention.) The Uniform Code of Military Justice and indeed the United States Code -– the laws of our nation as passed by Congress and signed by the President -– require nothing of the sort. This is because there is an immediate and obvious difference between apprehending, indicting, and trying even the worst murderers, rapists, and arsonists, and capturing men who are firing military-grade weapons at you in a theater of war. The Obama Administration is making a new practice, which will probably, as these things go, become a new law, where war criminals who shoot at American soldiers and Marines from the cover of civilian crowds are entitled to a twenty-year appeal process.

We must charitably assume that President Obama and his team are too thick to understand that laws mean most when they mean the least. The Constitutional rights recited in the Miranda coda with which we are all familiar apply to American citizens and those resident aliens who voluntarily submit themselves to the plenary authority of the United States. They are negative liberties, that is to say, limits on the power of the United States government (and, by acquiescence, the States) over those whom one would normally expect to be most subject to those governments; or if you prefer, they represent part of the compact between the People and the government of the United States, on the limits of the government’s power over the People and their invited guests. By contrast, the limits on a government’s power to prosecute war against aliens — the negative liberties those aliens enjoy — exist only by custom and by treaty. Those customs and those treaties grew up with certain expectations in mind, rights for reciprocal duties, and the loss of rights for violations of those duties.

An easy example is the Third Geneva Convention. One of the great teapot tempests of the last several years has been whether The Evil Bush Administration “violated international law” by denying Geneva Convention rights to combatants captured in Afghanistan and Iraq who went to war in civilian clothing, with no identifying markers or insignia, and who committed war crimes on American soldiers and civilians alike. In other words, the question was whether the Geneva Convention, which was designed in no small part to clearly separate armed forces from civilians so that the latter would be free of “murder of all kinds, mutilation, cruel treatment and torture … [o]utrages upon personal dignity, in particular, humiliating and degrading treatment … [and t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” see, Article 3, applies to people who refuse to abide by its requirements and hide among noncombatants. When one abides by the rules of war, and voluntarily lays down his arms, he is afforded the same rights. When one does not, those rights are and must be forfeit, because the alternative is to encourage combatants to blend with noncombatants and thereby risk the noncombatants’ lives and health. All of the idiotic arguments for giving those war criminals Geneva Convention rights, including the loss of reciprocity for American soldiers (a curious position that requires the belief that war criminals would otherwise accord those rights to Americans where no enemy America has faced on the battlefield since the Convention’s ratification has abided by it), overlooked this critical point: By expanding a law beyond its intended application, you thereby weaken it. By treating war criminals as legitimate combatants, you give them, and anyone watching, the distinct impression that there is no need to abide by the laws of war to have America treat you as if you have. You render the law meaningless.

Attorney General Holder’s decision to tell war criminals that their rights are greater than the Geneva Convention’s — that they enjoy the right to counsel (paid for by the United States) and the right to avoid self-incrimination — is madness. These are rights nowhere described in the Geneva Convention, except for lawful prisoners of war, who must be tried by military tribunals, see, Article 84. They are negative liberties enjoyed by American citizens and their guests. Miranda, you see, was the Warren Court’s attempt to make certain that not only the rights to remain silent and to counsel were protected; those are threshold rights, rights without which later rights during the criminal process are weakened or made meaningless.

They are a signal that a criminal process, ordered by Court decisions interpreting and at times stretching the Constitution, is underway. They are necessary so that, for example, an accused may have access to all of the exculpatory evidence the State has. They are necessary to protect those who wrestled loose Constitutional rights, and their guests, from a State inclined to break its compact.

By broadening the extraconstitutional Miranda holding and all of the rights it promises to encompass men who are definitionally committing war crimes by pretending to be noncombatants while fighting the United States, the Obama Administration is teaching these men that a criminal process is underway in which they will be cared for, represented, and have a much higher likelihood of returning to the field of battle. They are being encouraged to continue to commit war crimes, because they are being afforded greater protections than those men who abide by the laws of war.

Much as the Warren Court never understood the law of unintended consequences, and thereby gave us endless litigation over every Constitutional right real and imagined, in every situation imaginable, so the Obama Administration clearly hasn’t thought this through. If men who break the laws of war are entitled to rights greater than the Convention on the battlefield, men who don’t break those laws must be similarly entitled. Prisoner of war facilities must yield way to speedy trials and release if the combatants are guilty of nothing more than taking up lawful arms against the United States, which means they get put back into action immediately (thus negating one of the incentives for the signatory powers to the Convention). War criminals who hide behind noncombatants have no reason to abide by the laws of war. And everyone internalizes the lesson that the United States is soft, that it would prefer to relegate these matters to legal proceedings, that it wants nothing to do with the messy facts of making war in defense of its people.

Holder’s decision is a weakening of the law that protects our troops on the battlefield, and that protects us. This error will come back to haunt us.

Christopher Badeaux is a Senior Editor of The New Ledger.