For years I have complained that the opposition to the GWB administration was focused on the wrong things vis a vis the detention policy at Gitmo. There was too much focus on Gitmo itself as a lightening rod, and too much discussion of whether flushing a Koran down the toilet was torture. My point was that there didn't have to be torture for it to be wrong to hold non-uniformed suspected non-combatants in a non-declared war indefinitely, as if they were captured Nazi U-boat commanders. For example:
I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Justice Scalia argued that giving habeas corpus rights to enemy combatants during war time was unprecedented, but I responded:
I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine [that] the Supreme Court, encountering this new situation, sides with the individual over the government.
So now, just as I feared, the soil was fertile for a classic political bait and switch. Obama agreed to close Gitmo, the lightening rod of the controversy, thereby inspiring us to believe he is changing policy. When, at its heart, the real problem is still there:
Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.
She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.
If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.
I assume she and Holder are toeing the Obama line on this, though they could be the bearers of a trial balloon and it may be Obama has not made up his mind. I hope so. Here is some more.
"Do you believe we are at war?" Graham asked.
"I do, Senator," Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
"Do you agree with that?" the senator said.
"I do," Kagan replied.
Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"
Kagan replied, "I think it makes sense, and I think you're correct that that is the law."
"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.
I may have missed it, but did the AUMF or whatever it was that Congress passed before we entered Afghanistan and Iraq actually declare we were at war with the organization named "Al Qaeda." Or does the president saying the words "war on terror" enough times in 8 years just make it so?