Oh, the editorial starts off well enough, noting that by any name such behavior is unacceptable under our system, but it drops right of the cliff soon enough:
Imprisonment without trial violates the most fundamental principles of American due process and can be countenanced only under our traditionally accepted practice of holding enemy combatants as prisoners of war until a cessation of hostilities. Such cases should be exceedingly rare and subject to stringent outside review. The recommendations of an interagency task force convened by Obama that were recently made public fail to meet that standard.
The task force recommends that the administration detain 48 prisoners without trial. And although those inmates have the right to challenge their confinement in federal court, judges lack guidance about whether and on what grounds they should order any prisoner's release.
The task force's report confirms the popular assumption that some suspects can't be put on trial even if they have committed terrorist acts, because evidence was gathered on a battlefield and "was neither garnered nor preserved with an eye toward prosecuting them." Others, while active in Al Qaeda, couldn't be tied to specific plots. The report says that the principal obstacles to prosecution are not tainted evidence (presumably obtained by torture) or a desire to protect sources. ...
As the history of Guantanamo demonstrates, there is the possibility of error, exaggeration or mistaken identity. What's more, in a conflict that, unlike past wars, is open-ended, we're concerned that people could end up being held for years, theoretically even for life, under this plan. The task force notes that there will be periodic reviews by the executive branch, but we believe that there must be oversight of detention decisions by an independent body. And the burden should rest on the government to demonstrate that there is a high risk of imminent harm to Americans that the detention is meant to prevent. [Emphasis added.]
OK, the editorial gets the point that indefinite detention is a bad thing, but then equates the GWOT to a real war, instead of the hyperbole used by the government to justify over-reaching and dictatorial behavior (as in the "War On Drugs"). What is even worse, however, is the swift move at that point to call for a system which would in fact govern "preventive detention."
Obama's decision to hold some prisoners without trial creates a dilemma for those who oppose preventive detention: Allowing the status quo to continue is unsatisfactory, but action by Congress or the high court to provide judicial review would institutionalize a practice abhorrent to fundamental American principles. We uneasily would choose the second course, but only if the courts subject the executive branch's decisions to searching and sustained scrutiny.
Look, either the US Constitution is the ultimate law of the land which applies evenly and across the board or it really is "just a piece of paper." There is no choice to make, easily (which the Obama administration has done) or uneasily (which the editorial board just did). Fire is hot all the time, not just when it is convenient.
Detention without trial is wrong and it is unconstitutional.
Labels: Terra Terra Terra