Filmed an episode of Uncommon Knowledge last week on our treatment of the detainees at Guantanamo Bay, a matter now before the Supreme Court. (My guests: Erwin Chemerinsky, a professor of law at USC and a wonderfully bright and likeable man who is, however, as dedicated a liberal as I’ve ever encountered, and John Yoo, a professor of law at Boalt Hall, the law school at Cal Berkeley, who just returned from a couple of years in the Bush Justice Department. Although just starting his career–John is still a very young man–he is already hugely impressive, by which I mean right up there with Judge Bork.)
By the time the show was over, it had become clear to this layman that
a) As a purely legal matter, the Department of Defense has been correct all along to label the detainees “enemy combatants” and to assert that we had the right to detain them just as long as the war on terror lasted, and
b) That since the war on terror was completely open-ended-the president himself has said it might last longer than any of our lifetimes-our treatment of the detainees amounted, in actual practice, to putting them in the clink and throwing away the key. The war on terror, in other words, has run ahead of the law, presenting us with a situation that, while legal, violates every fundamental notion of decency and justice.
Today I opened the newspaper to discover that Donald Rumsfeld is on the case. The Secretary of Defense has directed the Pentagon to establish–and here I quote the Washington Post–”a review process…for detainees [that would] examine each case annually.” This represents one of those little affirmations of the Constitution that offers a moment or two of good cheer: A case goes before the Supreme Court, whereupon the Secretary of Defense swings into action. The result? A nation that is in one small but material way better-equipped to prosecute the war.