There are lots of unanswered questions. I'm just trying to think this through as it evolves. I hear what the civil libertarians are saying, and I understand their concerns, but I'm willing to cut Obama some slack until these questions get answered.
The problem, as I understand it, is to define what a combatant is as contrasted with a terrorist. The second is a criminal who can be tried; the first when captured is a POW who can be detained without trial until the end of hostilities. The wars in Iraq and Afghanistan are real wars with clearly defined combatants. The War on Terror is not a real war; it's more like an operation designed to destroy a criminal mob, like the drug cartels. But are members of al Qaeda, for instance, clearly criminals and not combatants? Does it depend on where and how you capture them? And what about Talibanis? Do they wear uniforms or dog tags? What are we doing with POWs captured in Iraq and Afghanistan now? Why are these Guantanamo detainees any different? They seem not to fit into any easy-to-define category, and that' where the problem lies for the Obama administration.
If this special class of captive in Guantanamo comprises people we know to be trained al Qaeda operatives, even if they have not been captured on the battlefield, my inclination is to treat them as POWs and detain them with other POWs in Iraq and Afghanistan following Geneva rules wherever we are detaining them now. You could ask, "How do we know that they are al Qaeda operatives? Maybe in some cases it's clear. Maybe in some cases they willingly admit it. Is that reason enough to detain them even if they haven't been caught in the act? I'm not sure. The gray area is in defining the criteria of certainty about a captive's hostile commitment toward the U.S. or other nations. I'm willing to let Obama make his case and then judge.
Maybe we have to redefine the criteria by which some one can be detained as a POW. Obviously the criteria cannot be so broad as to be able to arbitrarily declare someone an enemy combatant under the least suspicion. But isn't it possible that the traditional crystal-clear criteria, namely wearing a uniform and being caught on the battlefield, are too limiting. Is it perhaps possible to develop clear criteria that makes arbitrary captures extremely unlikely? The point is that we have to recognize that there are difficulties here that are not easily resolved by existing rules. And it makes a difference that someone like Obama is trying to define these rules and not egregious lawbreakers like those in the Bush Cheney regime. But obviously the rules Obama develops have to stand up to the test of what would a future Cheney do with such rules?
I don't hear Turley or any of the the other civil libertarians grappling with these problems. I don't think it's as black and white as they want us to think it is.
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UPDATE: I just read Greenwald who does take up the POW analogy:
When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be in a cage not for a few years, but for decades, if not life.
Obviously the mess that Obama was left with was caused by the non-discriminate way in which people were rounded up and thrown in Guantanamo. There is no question in my mind that being a terrorist is the same as being a combatant, and the Bush Administration was conflating the two in the misnamed War on Terror. There seems to have been no clear criteria or solid information regarding captives and whether they were genuine hostile or just unlucky enough to be in the wrong place at the wrong time. But assuming we have clear evidence going forward, you don't treat terrorists as combatants; you treat them as criminals, and that means prosecuting them in the courts.
But it's not as clear to me, as it apparently is to Greenwald and Turley, that the small group of detainees to whom Obama wants to apply prolonged detention are more in the terrorist category and less in the combatant category. Maybe Turley and Greenwald are right, but maybe they are jumping to conclusions. I'm just not that clear yet on the status of these particular detainees. Obama obviously recognizes the distinction between combatants and terrorists and is going to take care of people who are clearly terrorists in the courts or the military commissions (and that's a topic for another day), and he's going to release a lot of detainees who were misapprehended. It's this other neither-one-nor-the-other group that we need to have more clearly defined both in the instance of those now detained or others in the future who might have a similarly ambiguous status.
There are others who are talking about how preventive detentions will open the door to things like Japanese Internment camps, and to those I say, "Get a grip." My assumption until proved incorrect is that we're talking about a very special subset of people who are clearly hostile to the U.S., but who don't fit easily into the terrorist or combatant categories. Like spies and sabatoeurs. How were spies treated when captured during war time? No uniform, no dogtags, no battlefield. Are they tried as criminals or are they detained as POWs?
I'm sure there are other types that don't fit neatly into the normal definitions, and my assumption is that Obama is struggling to figure out how to handle them in a way that both respects the constitution and is prudent with regard to protecting American lives and interests. If I'm wrong about that, I'll be the first to admit it. I'm glad the Turleys and the Greenwalds are out there to hold Obama's feet to the fire, but for the rest of us, it's just not all that clear yet what he intends to do. I have a lot of respect for Turley, but I also think he's tends to be an impractical purist. He was one of the most strident advocates that Clinton should be impeached after having been entrapped by his perjury. Please. Context matters.
I think that the litmus test here is whether the rules that Obama eventually develops are rules we would trust another Bush administration with. Maybe that's an inapt rule of thumb since the existing rules were not respected by the recent Bush administration. But certainly we cannot make it easier for future abusers to justify their abuses, and we must have laws in place that we must assume will be used to prosecute such abusers. To me the most disturbing thing about the Obama administration is their reluctance to prosecute or "re-litigate" the abuses of the past eight years. What's the point of having laws and rules in the first place if these abusers know they will never be held accountable to them?
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