The Supreme Court and the Bush Administration’s Detainee Dilemma

I wrote The Rule of Law in Time of War two weeks ago in response to the Supreme Court’s defense of habeas corpus for the Guantanamo prisoners. Now I would like to call attention to an interesting blog post from the same time by someone who has done work on the detainee issue for the Bush administration, conservative blogger Bryan Del Monte of RightCommentary. In Supreme Court Grants Habeas Corpus to Detainees at GTMO, Bryan sees the court’s decision as “an incursion” by the judiciary into the war-fighting powers of the executive. I am less sure about this point, though I am happy that in a comment added to the post he criticizes conservative rhetoric of “judicial activism.” I have long felt such rhetoric only undermines respect for the law. As Bryan points out, “judges follow the law.” We need to remember that and quit treating the court’s decisions as one more political football.

Bryan also recognizes that the court made its decision only after it had given the administration many years to find a solution of its own. In the end he concludes, “The effects of this case will undoubtedly be far reaching. There will be many more questions for Justice Kennedy and his colleagues to answer. I say from experience – policy making on detainees is hard. Very hard.” I have no objections to that. The phrase “hard” even brought a grim smile to my face, because it reminds me of some of Bush’s own rhetoric over the past years.

But why is it so hard? It seems to me that making policy was so difficult for the administration because of the definitional knots into which it entangled itself. Calling the fight against terror across the planet a Global War on Terror and even baptizing it with an acronym, GWOT, encourages us to think about taking prisoners as we would in any war. But the Bush administration also rejected the applicability of the Geneva Convention for its detainees, until the court disagreed. Even then, though, the usual thinking about war and how we detain people during one only works if you can take prisoners and then turn them over to a state you are fighting after you have defeated it. What state are we fighting here? The administration recognizes this quandary when it speaks of “detainees” instead of “prisoners of war.” Fair enough. But then why the insistence on the war metaphor being a reality? Well, people are fighting and dying in places, so it feels a lot more like a war than just a series of police actions. Fair enough. But keeping detainees indefinitely goes against long-standing sentiments about what is right and wrong in our political system. The administration needed a way to deal with detainees in a manner that comported not just with the narrow letter of the law, but also its spirit and the broader centuries-old political culture whence it springs. In this task the Bush administration failed.

At the most fundamental level, the current fight against terror, call it the GWOT if you want, represents something fundamentally new. The Bush administration failed to address the new detainee issue in a meaningful way. It left it to the court to bring the issue of detainees into sync with our laws and international norms. So, like Bryan, I am “not surprised” at the Court’s decision. Unlike Bryan, though, I am not “dismayed.” Indeed, I am relieved, because this issue of indefinite detention at Guantanamo is one of the worst stains on the American image in the world, and because I firmly believe that legalistic arguments are no substitute for making decisions that also comport with the broad spirit and tenor of our Constitution and the political culture of which it is a fundamental part.