President Obama is praising himself, and receiving praise in some quarters, for having at last developed a coherent legal framework for dealing with captured terrorists. Obama has, to be sure, proposed to divide these terrorists up into a bunch of categories and to treat them based on that categorization. But categorization, and consistent treatment based on category, does not guarantee coherence. And the way Obama apparently plans to treat detainees in the key categories strikes me as anything but coherent.
As I understand it, the Obama administration intends to hold detainees indefinitely without trial if it (and whatever body is reviewing its decision) thinks they are too dangerous to release and too difficult to convict of a crime. But what kind of justice system grants a trial only to defendants it thinks it can convict. Such a regime seems as nonsensical as a system under which a baseball team in the field can keep an opposing hitter in the dug-out if its pitcher believes he cannot retire that hitter.
If the applicable law permits us to hold dangerous detainees indefinitely without trial, then we should hold all such detainees in this manner. After all, we cannot be sure in advance of a trial that we will succeed in convicting any particular detainee.
And if the law does not permit us to hold dangerous detainees indefinitely without a trial, then I don’t see how we can decline to try a dangerous detainee on the grounds that our evidence isn’t good enough to convict. Rather, as Jameel Jaffer of the ACLU says, “if they cannot be convicted, then you release them; that’s what it means to have a justice system.”
In this scenario, wouldn’t Obama be acting in clear disregard of the law if he picks which detainees to try based on the likelihood of obtaining a conviction? And wouldn’t he and those advising him be subject, potentially, to prosecution in the event that the law is found to require trials for all detainees? Surely, holding a detainee for years (or for life) without a trial is at least as grave an affront to the rights of man than a few moments of being waterboarded.
Perhaps the solution is to release the dangerous detainees and then follow and kill them. As I understand it, we are tracking down and killing dangerous terrorists that we haven’t captured. And we probably would have killed the terrorists we detained except for the fact that we wanted to interrogate them.
Obama is coming to realize, I think, what an absurdity the emerging law on detainee rights is. His reaction, it seems, is to respond to that absurdity with an absurdity of his own. Maybe there’s coherence in that response after all.