In a meadow near Windsor one fine day in 1215, King John, under pressure from disgruntled nobles, affixed his royal seal to the Magna Carta, clause 39 of which provided:
No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.
The War on Terror is often framed as a clash between western champions of modernity and the medieval mindset of Salafis. Yet these days our own commitment to even medieval guarantees of due process often seems, at best, half-hearted. As The Washington Post reported on Sunday, the Pentagon and CIA are developing "long term solutions" for terror suspects held at Guantanamo Bay and various CIA facilities whom the government intends neither to release nor, due to lack of evidence, to try in court. Proposals include the construction of "Camp 6" (a belated sequel, perhaps, to Slaughterhouse Five), a $25 million prison to house 200 people. Indefinitely.
Sen. Richard Lugar (R-Ind.), who chairs the Senate Foreign Relations committee, has already distanced himself from the idea, agreeing with Sen. Carl Levin (D-Mich.) that "some modicum of due process" is required before even foreigners are imprisoned for life. Yet with details still maddeningly vague at this stage, nobody seems entirely sure yet just what makes a modicum.
The Supreme Court's ruling in Rasul v. Bush this summer established that detainees at Guantanamo's Camp X-Ray have a right to some sort of review of their designation as enemy combatants. Most of the 550 prisoners (a term the administration continues to reject—"detainees," please) still held at Guantanamo have since been affording such a hearing. Two have been recommended for release. This indicates either that the military did a remarkably good job of filtering when, prior to the Court's decision, it released some 200 prisoners deemed of little intelligence value, or that these "combatant status review tribunals" have a distinctly marsupial character. In November, Washington, D.C., Disctrict Court Judge James Robertson ordered a halt To the trial by tribunal of Salim Ahmed Hamdn, alleged to be Osama bin Laden's chauffeur, repudiating "the government's argument that the President has untrammeled power to establish military tribunals," and some 50 other detainees have filed challenges to the review process, alleging that it fails to provide due process.
Civil rights attorney Harvey Silverglate, who writes about the rights of detainees in a January reason cover story, suspects the government may attempt to sidestep the controversy by "plunging into one of the glaring loopholes in the Supreme Court's decision. The Court's ruling in Rasul turned on its finding that, despite being located on Cuban soil, Camp X-Ray is de facto under the "complete jurisdiction and control" of the United States. That leaves open the possibility, says Silverglate, that a U.S.-sponsored prison on foreign soil, over which another government exercised greater nominal control, might escape such scrutiny. And if the 9/11 Recommendations Implementation Act, passed by the House of Representatives this fall, is any indication, legislators are eager to make it easier for the Director of Homeland Security to render aliens into the hands of foreign governments, whether or not they have any connection to the country to which they're being sent.
As the debate over the fate of the detainees —or as much of the debate is allowed to be aired in public—heats up, many will doubtless be impatient with such dainty regard for the civil rights of a group which surely contains very many vicious thugs, none of whom had the good sense to be born American. We are, as the saying goes, at war—grappling with monsters. And sometimes mercy drops not like a gentle rain but a hailstorm: As of late December, a dozen of the roughly 200 Guantanamo detainees released were known to have returned—or at least turned—to the fight against the U.S.
Lives are at stake in the War on Terror, of course. But lives are always at stake. When we release murder suspects whose guilt cannot be proved beyond a reasonable doubt, we implicitly commit ourselves to living among people we imagine are quite likely killers. If all that mattered were minimizing the risk to life, why not adopt for murder trials the "preponderance of the evidence" standard used in civil cases, or even the "precautionary principle" urged by environmentalists?
We decided long ago, at least when it comes to domestic justice, that there are abysses into which a free society will not stare, even at the cost of assuming significant risk. But when those same risks come clothed in the words war and terror, we become suddenly timorous, fearful of holding ourselves to even dramatically watered down evidentiary standards lest we release one guilty man along with 10 innocents.
We are at war. But even wars have rules, and even prisoners of war are supposed to be tried for war crimes or, at war's end, released. The rules are trickier now: Absent the prospect of signing a treaty for cessation of hostilities with a denationalized radical ummah, the war isn't over until we say so. For practical purposes, if the government has its way, that will mean we assume the power to watch men, so long as they're foreigners, grow old and die in a cage, either here or abroad, without affording them even the mildest presumption of innocence. If we genuinely believe that freedom is "God Almighty's gift to each and every person in the world," we must step back from that abyss.