With its myriad of “desk officers” and “stovepipes,” the hierarchy of the executive branch is well-suited for managing stability. But when new problems arise, it tends to take them piecemeal, often with little consideration of how they are interrelated or of the larger historical questions at stake. At the White House — which in the modern era has become a permanent campaign perpetually harried by the crisis of the moment — there is little time for meditation on ultimate historical issues. As a result, the nation has become woefully bereft of the capacity for choice on a historical scale.
A great leader can overcome this inertia by challenging the people to tackle the most fundamental and difficult issues of the age. The attacks of September 11 left many such issues in their wake — take for example that of how to handle terror suspects. Obama announced that he would be closing Guantanamo within a year, leaving himself just that much time to solve one of the most difficult issues of the War on Terror. But pending the administration’s internal review, Obama’s comments on this issue have been mostly ornamental. To paraphrase Oscar Wilde, he doesn’t have a lot to say, but he says it charmingly.
Before September 11, there was a difference between a prisoner of war and a criminal defendant.
Prisoners of war are normally held until the cessation of hostilities in order to prevent their returning to the fight. This is true even if they are completely innocent of wrongdoing — in which case they enjoy many protections and privileges under the Geneva Conventions. But early release is not one of them. In wartime, the overriding concern becomes public safety.
Criminal defendants, on the other hand, have always been afforded rights to a speedy trial and to confront witnesses, and other protections of the justice system, because in peacetime, the overriding concern becomes individual liberty.
Because terrorists blur the distinction between the two categories, their attorneys invoke both sets of protections. As a result, terrorists stand to accumulate the protections we offer to each category, and stand to wind up in a better position than if they were just one or the other.
But we can’t give terror suspects the full privileges of prisoners-of-war status, because in doing so we would vitiate a key purpose of the Geneva Conventions: to create incentives for soldiers to comply with the laws of war. If even terrorists who hide among civilians and intentionally target them are afforded Geneva protections, why should any soldier abide by the rules of war?
Similarly, terrorist criminals cannot be allowed to benefit from the fact that they are more dangerous than common criminals. And even when we know that they have committed crimes, our evidence may be in the form of “intel” that is vital to ongoing investigations, or that “belongs” to a foreign government, making it impossible to prosecute them in a normal way.
The Bush administration took upon itself the task of devising a balanced, rational, and ethical scheme for dealing with this new kind of detainee — at least that’s what they tried to do. But Bush didn’t go to Congress until adverse federal-court rulings forced him to.
That was a mistake. Expanding preventative detentions beyond “prisoners of war” to broader populations that seem more like criminal defendants can only constitute a dramatic expansion of state power. This is especially true because holding them until the “cessation of hostilities,” when no formal surrender will ever be forthcoming, is potentially the same as a life sentence for everybody detained on suspicion of terrorist activity. The threat to individual liberty is obvious.
The resulting dilemma strikes at the heart of our social contract, and implicates the eternal conflict between individual liberty and state authority. Only “the people in Congress assembled” should decide where to strike the balance.
Obama could arguably base his entire criticism of Bush’s Guantanamo policies on this analysis. Instead, when 60 Minutes recently asked him to respond to former Vice President Cheney’s criticism of his Guantanamo policy, what viewers got was a sophomoric talking point drawn almost verbatim from the Democratic party’s 2008 convention platform:
I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can’t reconcile our core values, our Constitution, our belief that we don’t torture, with our national security interests.
Dick Cheney thinks no such thing, nor do any of his supporters. What we do think is that it is sometimes difficult to reconcile public safety with the rights of the individual. One of the most profound insights of Enlightenment political philosophy is that the conflict between individual liberty and public security is an unavoidable attribute of government.