War Detainees
The Supreme Court heard arguments yesterday about the standing of detainees in Guantanamo, who are being held indefinitely, without being able to consult a lawyer.

"At issue is a basic protection of U.S. law: a prisoner's ability to ask a judge to determine whether he has been wrongly jailed. This writ of habeas corpus was part of early American common law and became a federal statute in 1867.

The administration says that as foreigners held outside the USA, the detainees should not have access to U.S. courts. (The United States has operated the base under a lease with Cuba since 1903.)

U.S. Solicitor General Theodore Olson began his arguments by saying, 'The United States is at war,' an echo of the administration's refrain that in wartime, the president must take extraordinary measures to protect the nation. Olson, whose wife, Barbara, died on a hijacked jet on Sept. 11, 2001, cited a 1950 Supreme Court ruling in which German nationals who were seized by U.S. troops during World War II were denied access to federal courts. He likened the Guantanamo base to a U.S.-run prison in Germany and said the court should not distinguish between foreigners still held in Afghanistan and those on the U.S. base."

I listened to much of the oral argument on C-Span last night and am troubled by the willingness of all parties to gloss over what seems to me a central concern: exactly what kind of "war" is this? And against whom? The fact that words and definitions can be gathered, circumscribed through history and common usage, does not mean that the phenomena they aim to represent (the bloody, tense political and military reality in this case) can be similarly gathered (In fact I think that just the opposite is true, but nevermind that here).

"War" is a word that justly applies to our present situation, both in Afghanistan and Iraq. That doesn't mean that every historical/legislative/judicial/cliched application of the word anticipated a scenario like either of our present engagements. And it is, to me, exactly the difference--the edges that seep out from under simple attempts to harness these conflicts(like "We are at war")--that warrants consideration in the case of these detainees.

If our opponent had a flag, national boundaries, a leader or institution authorized to surrender or sign a treaty of peace, then it might make perfect sense to me to hold combatants, or even people we thought were likely combatants, until such time as the conflict is resolved. But Bush et al have announced war on "terrorism," which, as Bob Kerrey rightly points out, is a method of waging conflict, not an opponent itself. In traditional warfare, identifying the detainee's association with the enemy is not generally in question, right? The argument is over whether the conflict has ended, and on what terms. The detainee has no say in that in conventional war, and so there is no reason to hear from them. The treaties/agreements entered by the leaders solve that issue. But here, the case for their association with an enemy itself requires an argument, indeed is the primary argument, let alone the issue of whether the threat posed by that enemy continues.

Terrorism will remain a potential danger to the US for as long as people hate us who feel no other recourse, have no interest in staying alive themselves, and insist on pursuing some confrontation, and for as long as we remain as freely accessible here and around the world as we are. And so, in the absence of an enemy who can be gathered with a name, the question of rights to hold detainees is not "are we in danger?" (we are and will be) but "are YOU a danger?" We are not holding them in waiting for the conflict to end, or the danger to disappear, in a traditional setting in which "who are we fighting?" and "on whose behalf are they fighting?" are understood. We are holding them by way of an argument about who they are, individually. I am not suggesting the detainees in question are necessarily to be believed in addressing that question, but I am suggesting that they deserve to be heard.

The "war on terror" has been configured in such a way that ensures its perpetuity as an applicable label. It can be called on. It's name, as a "war," can be invoked at any time, so too then all the arguments and contingencies that surround that concept. So only an act of will by the US, not by the "enemy," will declare the end of this war. I believe one of our first acts should be to recognize this difference, and to let that difference have its say in the way we approach all the concerns, at home and abroad, that accompany wartime.

I admit I don't know all the legal ins and outs here. I understand that the question is really who--if anyone--has the standing to make the case that this is different from standard warfare detainment. My main response is, why have we not, as a matter of common sense in this case as the detaining body, acknowledged its difference, and set our policies for this "war" accordingly, and not put them in the position of having no avenue for legal redress?

You can hear the Supreme Court argument here (scroll down to "Rasul v. Bush"). You can read the briefs on this page.

Eugene Volokh uses standard slippery slope blather in ignoring the difference this conflict poses here. David Cole in the NYT, thinks the fact that these are foreign detainees, not citizens, shouldn't matter. The Christian Science Monitor makes the case that whatever the outcome, the empowerment of one branch--either judicial review of the actions of commander in chief, or executive freedom to imprison whomever it likes for as long as it likes--could pose serious problems for the other.