Cotton on Gitmo, Take 3

Last night, Sen. Tom Cotton appeared on Megyn Kelly’s Fox News program to respond to criticism of his statement that terrorists at Gitmo should “rot in hell.” Kelly asked Senator Cotton to address the specific (and entirely bogus) complaint by the attorney for the 9/11 mastermind that Cotton’s statement endangers American captives abroad). Scott posted Senator Cotton’s response here.

After Senator Cotton’s appearance, Kelly trotted out Andrew Napolitano, Fox News’ resident libertarian, for his reaction. Napolitano proceeded to attack Tom — speciously and condescendingly, as I argue below.

First, let’s look at what Tom said that Napolitano found objectionable:

In my opinion the only problem with Guantanamo Bay is there are too many empty beds and cells there right now. We should be sending more terrorists there for further interrogation to keep this country safe. As far as I’m concerned, every last one of them can rot in Hell, but as long as they don’t do that they can rot in Guantanamo Bay.

Here was Napolitano’s response:

My beef with the senator – who’s an Iraq War veteran and a lawyer – is that he should know what the Supreme Court ruled. . .When a senator who is a lawyer basically thumbs his nose at the system and says these people should rot in hell or rot in Gitmo – whether they’re guilty or innocent – doesn’t cut it.

Napolitano went to serve up a paean to the legal system that has been established to provide rights to detainees and to the military prosecutors who helped formulate them. He praised General Mark Martins, the system’s architect and a Harvard Law grad (no less), and he accused Cotton of “insulting the system.”

Napolitano also chided Cotton for being “angry” when he made his comments at the Senate hearing (he was calmer during the Kelly interview, Napolitano allowed). Continuing in the same condescending manner, he concluded that Cotton has only been a Senator for a month and will probably change his views after he’s been in the job for a while.

Wanna bet?

My beef with Napolitano, his arrogance aside, is that he demands a level of respect for the system that he fails to show it’s entitled to — an odd failing for a libertarian. I can assure Napolitano that Tom knows what the Supreme Court has ruled in the relevant cases. The issues raised by Napolitano’s rant are: (1) what level of respect are these decisions, and the superstructure imposed on them by “the system,” entitled to and (2) did the Senator fail to offer that level of respect.

Rulings of the Supreme Court are final for purposes of disposing the issues they encompass. Thus, if the Court decides that detainees are entitled to particular processes, those processes must be provided.

Rulings of the Supreme Court are entitled to no more deference than that. They can be criticized and they can be “insulted.” Lawyers and U.S. Senators have as much right to “insult” them as anyone else. Naturally, the same is true of procedures designed by policy makers to comply with Supreme Court rulings, even if the man in charge of designing them went to Harvard Law School and holds a General’s rank (my criticism of Gen. Martins can be found here).

Again, it’s jarring to hear a libertarian whine that someone has “insulted” the system, military prosecutors, and a General.

Does Senator Cotton’s statement that, as far as he’s concerned, every last Gitmo detainee can rot in hell or at Gitmo, fail to grant Supreme Court decisions the level of respect they deserve? Not at all.

Tom’s statement is analogous to someone saying, at the time of the first O.J. Simpson trial, that as far as he’s concerned, Simpson can rot in hell (or in jail). That’s not an assertion that Simpson isn’t legally entitled to a trial or that, if tried and acquitted, he should be incarcerated nonetheless. Instead, it’s an expression of opinion as to what a just outcome of his case would look like.

So too with Gitmo detainees. To my knowledge, Tom hasn’t advocated that the state deny them the process the Supreme Court has said they shall have. He simply expressed his opinion as to what outcome they deserve.

The Senator probably disagrees with awarding the detainees as much process as they have received; many of us, including four Supreme Court Justices do. Napolitano didn’t defend the award of that much process. The best he could do was to vouch personally for General Martins. Thanks for nothing.

Senator Cotton also disagrees, as he told Megyn Kelly, with Obama’s decision not to keep sending detainees to Gitmo for interrogation. That decision is not mandated by any Supreme Court decision. The Obama administration decisions Tom complained about at the Armed Services Committee hearing are the ones “mandated” by the president’s campaign promises, not those mandated by the Supreme Court.

Finally, what of Napolitano’s assertion that Senator Cotton wants detainees to rot whether they are guilty or innocent? Tom addressed this in his interview with Kelly. He stated that the relatively small number of remaining Gitmo detainees are not “goatherds” who were in the wrong place at the wrong time; rather, they are hardcore terrorists who are likely to return to the battlefield.

These detainees have had their cases reviewed multiple times pursuant to the same process that has led to the release of many others (an unsettling number of whom have returned to the battlefield). There is ample basis to believe that they are deadly terrorists who should, in fact, rot in hell.

The detainees may not have received the level of process the system has decided they should receive before determining their guilt or innocence. But Senator Cotton and the rest of us are entitled to believe that this level of process isn’t required to form a reasonable opinion about guilt, just as the detainees’ sympathizers are entitled to believe that more process (e.g., a full-blown trial in federal court) than the Supreme Court has mandated is required for that purpose.

Libertarianism is, in part, an attitude in two senses: (1) a way of looking at the world and (2) often a certain arrogant stridency. Last night, Napolitano’s attitude was libertarian more in the second sense than in the first.