From what I can gather, military lawyers are less inclined to tell our military personnel what they can do than to tell them what they can't. Even routine military initiatives must be approved by lawyers. And they seem inclined, as one can gather from the attitudes of Sen. Lindsey Graham, R-S.C., who is a longtime military lawyer reservist, to a maximalist interpretation of detainee rights. This was a problem before Obama's liberals entered the Justice Department, and it will be one after they leave.
The other problem is what I call the sloppy over-generosity of the American people. Except when aroused and alert, we have a tendency to be fat, dumb and happy, and to want to spread that happiness around. So, hey, let's give these detainees more rights than they're entitled to under the Geneva Conventions. It'll make us feel generous, and maybe it will make them like us.
The problem with such an attitude, which is not limited to the left end of the political spectrum, is that the Geneva Conventions are not strengthened but rather are undermined by extending their protections to people who are not entitled to them. Geneva treats unlawful combatants -- those not in uniform or in an organized military force -- worse than it does uniformed soldiers because it seeks to establish a clear dividing line between soldiers and civilians, to give limited rights to the former and to protect the latter. If you shield unlawful combatants from interrogation, you create an incentive for others to fight unlawfully and so are creating greater risks for civilians.
Of course, as Obama said, it is ridiculous to administer Miranda warnings to unlawful combatant detainees in Afghanistan. And it seems obvious that if we revert to treating terrorism as a matter for primarily criminal law, we risk opening ourselves to another Sept. 11-type attack, or worse. But the problem is not just in the Obama administration -- it is in our military establishment and ourselves.