Where Have We Heard This Argument Before

A Justice Department-led task force has concluded that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war, according to Obama administration officials.

Oh yeah: from the Bush adminstration. The big difference though, is that the current administration is saying detainees still have the right to habeus corpus to challenge their incarceration in Federal court.

The problem I have with this is that it's an attempt to split hairs; if these fifty detainees can be held under the "laws of war" then they shouldn't have the rights of an accused criminal. President Obama's rhetoric about setting the example for the rest of the world by closing Guantanamo has given way to the harsh reality that these people are dangerous, they can't be deported (their countries don't want them), they can't be moved to American prisons (at present it's a political non-starter), and they can't be set free. It's a tough situation.

The Bush administration ran aground on the issue in a different way: arguing that the men were prisoners of war and thus had no right to habeus corpus but also weren't "soldiers" in the ordinary sense, and so had no protections under the Geneva Conventions. Bush recognized, rightly, that giving these guys trials would only give them a stage to try and put America on trial while exposing intelligence information that would ultimately jeopardize American lives.

Like I said, it's a tough situation, and I think both presidents tackled/are tackling it the best way they know how. President Obama knows these men are dangerous; the difference in approach stems from a philosophical difference in fighting terror (the old criminal-vs-war argument). Personally, I think these fifty men should be held as prisoners of war, tried by military tribunal and punished (or not) by the rules that govern such tribunals. That means they would fall under the Geneva Conventions, but that's the rules we play by. It's not a perfect solution, but there is no perfect solution. It's time to stop trying to split the difference. It didn't work for Bush and it's not working for Obama.


(Crossposted from Say Anything)