I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees. First, I will observe that I have great readers, because all of the email was respectful. Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet.
I got a lot of email about past precedents and settled law on this. What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent. The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap. They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants. New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.
I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees. I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets. The place where reasonable people disagree is what to do with this mixed bag. Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street. I would argue in turn that this is exactly NOT how our legal system works. For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.
It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's. Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"
I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process. It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming. And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.
Update: More, from Cato and George Will, here. There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me. John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.