White House aides say they are working up an executive order to allow the U.S. to hold enemy combatants indefinitely. “One reason Mr. Obama has been forced to allow indefinite detention is because he seems unwilling to allow more military commission trials at Guantanamo,” according to the Journal.
That is an extraordinary turn of events. Mr. Obama ran for president by lacerating his predecessor for acting in ways that were, he said, lawless and unconstitutional, in violation of basic human rights, and an affront to international law, and in ways that discredited and disgraced America’s name around the globe. And now we learn that Mr. Upholder of International Law himself, Barack Obama, is going to continue his policy of holding enemy combatants indefinitely.
At least the Bush policy of military tribunals, which was based on wartime precedent and previous Supreme Court rulings, allowed suspects a lawyer and a trial by jury. When in 2006 the Supreme Court struck down military tribunals (in Hamdan v. Rumsfeld), the Bush administration and Congress effectively rewrote the law, passing the Military Commissions Act of 2006. The administration was trying to find the right balance between indefinite detention on the one hand and not providing suspected terrorists with the full array of constitutional rights an American citizen possesses on the other. (The Supreme Court’s 2008 terribly misguided ruling in Boumediene v. Bush, which for the first time in our history conferred a constitutional right to habeas corpus to alien enemies detained abroad by our military force in an ongoing war, made striking this balance far more complicated.)
President Obama, because he appears unwilling to allow military commission trials at Guantanamo, seems to have settled on indefinite detention. This is a significant moral step backward.
I went to law school from 2004-2007. Those were the high water mark years for left-wing complaints about the "shredding of the Constitution" under the dark night of Bushite fascism. There were teach-ins, law review articles, and (worst of all) sarcastic comments during lectures. There was no doubt that the idea of holding captured terrorists in a modern prisoner of war camp in Cuba was literally a crime against humanity.
This was reflected in the overall public debate. Every goofball federal district judge who issued a pompous ruling about "civil rights" vis-a-vis military tribunals was elevated to Atticus Finch levels. GITMO, rendition, "black sites" or whatever were worth dozens of outraged news stories, plus thousands of link-filled blog posts. I know that Iraq was a bigger deal for "independents" in turning them against Republicans, but the complaints about GITMO and military tribunals were a close second. And, those complaints were one of the primary bloody shirts for motivating the Democrats' left-wing base. Apparently, none of this really mattered, except as a means to ride a few score of terrorists to congressional majorities.
I continue to shed no tears for the terrorists held at GITMO. If they are held there "for the duration," so be it. But, the idea that they should simply sit there and rot does nobody any favors. Forget whether or not we should try and convict them. Why in the world should Americans put up with Khalid Sheik Mohammed - the architect of the worst mass murder on American soil - being held in Cuba with no prospect of being punished for his crimes? That's an injustice, not against KSM - you should really care less - but against his victims.
It's a strange division in means that has developed in American politics. The Right wants to prosecute mass murderers for war crimes, and punish them appropriately, something that has historically been the prerogative of civilized nations. The Left simply does not want to prosecute these men, for what reason I have no idea. Perhaps it's due to the Left's related aversion to the death penalty? Or that they wanted no part of the Bush administration's anti-terror strategy to succeed? Or that they don't want the American public to be able to see its system work, and its enemies defeated?
Whatever it is, I don't think the Left's efforts have been admirable.
