An unpersuasive plea

Alberto Mora was general counsel of the Navy until 2006. He disagreed with other Defense Department lawyers about complex and novel issues relating to how war on terror detainees should be treated. Mora favored more rights for such detainees than most of his colleagues, including his superiors in the bureaucracy. When Mora’s view did not prevail, he took his story to well known liberal journalists at the New Yorker. Predictably, they depicted Mora as a hero. They also painted his superiors, especially DOD general counsel Jim Haynes, in a bad and (I’m told) false light.
Today, Mora and Thomas Pickering (an undersecrtary of state in the Clinton administration) have an op-ed in the Washington Post urging the government to extend to detainees at Guantanamo Bay the right to litigate in federal courts. If the arguments in this piece are indicative of the arguments Mora made at the defense department, then it’s easy to understand why he was unsuccessful in that forum.
Mora and Pickering begin by stating the “for more than 200 years, the courts have served as the ultimate safeguard for our civil liberties.” (emphasis added) This is true. But they have never served as the safeguard for foreign nationals who take up arms against us. For 200 years, such individuals have been detained for the duration of the war they were waging against us, with no right to petition anyone. Most of these individuals have been members of regular armies that adhere to the rules of war. If we don’t grant access to our courts to these individuals, who surely have a moral status superior to rag-tag terrorists who adhere to no rules, a compelling argument should be required of anyone insisting that the Gitmo detainees have such access.
Mora and Pickering make the two familiar arguments. First, they note that, unlike our other wars, the war on terror may continue “potentially forever.” But, to the extent one thinks this unfortunate fact gives special status to those who are waging such a daunting war, the current system gives them rights that prisoners in ordinary wars don’t have — the right to challenge their detention before a Combatant Status Review Tribunal. And, while this system apparently may not meet the exacting standards of Mora and Pickering, it (and prior methods of processing detainees) has resulted in the release of the majority of those who have passed through Gitmo, some of whom apparently have rejoined the battle against us.
The other argument raised by Mora and Pickering is that if we don’t grant access to our federal courts to detainees, we “cannot expect other nations to afford [our] citizens the basic guarantees provided by habeas corpus.” But there’s no reason to think that giving terror suspects more legal process is going to induce treatment in-kind by those who take our soldiers, diplomats, or ordinary citizens
prisoner. These countries don’t even provide such process to their own nationals. It is hopelessly naive, and perhaps a bit narcissistic, to think that they take their cue from us.
Our courts are for us, not for foreigners who were captured in the course of the war on terror, and who are already getting at least as much process as they deserve.
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