If, as he so often points out, President Bush is a post-9/11 president, what the country sorely needs in 2009 is a post-post-9/11 president. That would be a chief executive who understands what Bush has not: The war on global jihadism is too important to be run as a permanent military emergency. It needs a sustainable, legislated legal architecture.
As Corine Hegland's cover story in National Journal makes vividly clear, Guantanamo is just the beginning. For years to come, the United States is going to be hunting and capturing jihadist operatives on insurgent fronts around the world. Some of these people will be too dangerous to release but cannot be charged as ordinary criminals. What to do with them is the country's most urgent legal question.
Between now and next year's election, there is an approximately 3.27 percent chance that Bush and the Democratic Congress will join forces to resolve this problem, which leaves an approximately 96.73 percent chance that the next president will inherit it. So what do the presidential candidates propose to do about preventive detention?
My colleague Alexander Burns queried all of the announced candidates. Three, all Republicans, did not respond: Sen. Sam Brownback of Kansas, former Massachusetts Gov. Mitt Romney, and Rep. Tom Tancredo of Colorado. Most of the others gave vague or incomplete responses, often raising more questions than they answered.
Still, with a generous dollop of reasonable inference, I managed to sort the candidates' positions into four broad schools. Call them maximalist, minimalist, judicialist, and restrictionist.
Maximalists think that President Bush basically has it right. They believe that the president can use his military authority to detain terrorist suspects with little judicial or congressional oversight. Former Wisconsin Gov. Tommy Thompson, a Republican, seems to be in this camp, although conditionally: According to a spokesman, he favors holding detainees "as long as the United States sees them as a credible threat," but under streamlined review procedures.
Ed Crane, president of the libertarian Cato Institute, reports asking former New York City Mayor Rudy Giuliani whether the president has the power to arrest U.S. citizens on U.S. soil and hold them without court review. According to Crane, Giuliani replied that he would want to use this authority infrequently—implying that the president has such authority to use.
Asked about Crane's account of her boss's view, a Giuliani spokeswoman said, "That sounds about right." Requests for elaboration met with no response.
Crane says he asked Romney the same question at a meeting of the Club for Growth, a conservative group. Romney, reports NationalReview.com blogger Ramesh Ponnuru, told Crane "he would want to hear the pros and cons from smart lawyers before he made up his mind," an account that Crane confirms. Romney has also said publicly that the Guantanamo Bay detention facility should be doubled in size because inmates "don't get the access to lawyers that they get when they're on our soil." His campaign did not respond to requests for comment, but Romney at least sounds like a maximalist—albeit one who has not given a moment's serious thought to the most important legal question of the day.
That the maximalist position should be cavalierly propounded and thinly defended is not surprising, because the position is cavalier and indefensible. The notion that the chief executive can clap anyone in prison forever with only nominal court review was one the Founders had something to say about, in a document called the Declaration of Independence. In any case, maximalism has already crumbled in court.
Minimalists oppose long-term preventive detention. They believe that if the government cannot file criminal charges, detainees should be released or deported. Former Democratic Sen. John Edwards of North Carolina seems to be in this camp, saying (according to a spokeswoman) that Guantanamo detainees should be tried either in the civilian judicial system or in military courts under the Uniform Code of Military Justice. A spokesman for former Democratic Sen. Mike Gravel of Alaska agreed with a recent court decision holding that a detainee must be tried in civilian court or released. Liberal Rep. Dennis Kucinich, D-Ohio, and libertarian Rep. Ron Paul, R-Texas, likewise oppose preventive detention.
This position is respectable. No one doubts that any system of administrative detention poses a hazard to core civil liberties, and it is at least arguable that the risk of abusive detention outweighs any potential terrorist threat. Respectable, however, is not the same as realistic. Many detainees will be picked up on foreign battlefields where the evidentiary and procedural standards of criminal law will be impossible to meet. It is a plain fact that no sane president of either party is going to release jihadist kingpins because witnesses were unavailable or DNA was improperly preserved.
Between the maximalist and minimalist extremes lie two intermediate positions. One is judicialism, which would basically leave the matter to the courts, with Congress trying to intervene now and then if the courts seem to veer too far one way or another. For the most part, this passive approach of punting to the courts is the same as the status quo.
Former Arkansas Gov. Mike Huckabee and Rep. Duncan Hunter of California, both Republicans, are in this camp. Quoted by a spokeswoman, Huckabee said, "I believe that these issues are best left to our courts." Hunter, according to a spokesman, awaits further court action and is generally satisfied with the current state of affairs. Sen. John McCain, R-Ariz., also believes that next steps should await court action. He, however, is in a category of his own: Having led the enactment of two major laws on the handling of detainees, he has presumably earned the chance to see how his legislation plays out.
In a democracy, asking the courts to make up a whole new branch of law might make sense if elected legislators, otherwise known as Congress, had never been invented. It might also make sense if the courts were good at running the war on jihadism. Courts, however, see only specific cases, often in a random order; they are inexpert at dealing with national security issues and diplomatic trade-offs; and they are internally divided all the way up to the Supreme Court. For all of those reasons, and others, the courts couldn't write a coherent detention law even if they tried, which they won't. Instead, they will create a tangle of legalistic requirements and ambiguities that will do nothing particularly well, except perhaps make work for judges. They are doing a pretty good job of that already.
Angry and unwilling to sit on their hands, restrictionists seek to set some legislated boundaries. They want to limit but not eliminate the president's freedom to seize and hold people as enemy combatants—by giving detainees access to the courts through habeas corpus review; by closing Guantanamo; by narrowing the legal definition of an unlawful enemy combatant; by restricting the practice of "rendering" terrorist suspects to third countries or secret prisons abroad; and so forth. Sens. Joseph Biden of Delaware, Hillary Rodham Clinton of New York, Christopher Dodd of Connecticut, and Barack Obama of Illinois, plus New Mexico Gov. Bill Richardson—all Democrats—favor most or all of these restrictions, in varying permutations.
The restrictionist position appeals to moderate Democrats because it implies that the United States needs some kind of detention system but that the Bush administration has gone too far. What it does not do is solve the problem.
Providing habeas corpus rights to detainees sounds like an answer, but it really just restates the question. Habeas allows detainees to ask a federal court to order their release, but it does not provide rules to guide the court's decision. By itself, calling for habeas is another way of saying, "Let the courts decide."
Boldly for a Democrat, Obama explicitly affirms, through a spokesman, that the U.S. "must retain the right to detain those who can legally be held under the Geneva Conventions for the duration of any conflict." Most of the other restrictionist positions tell the executive branch what it cannot do, without saying what it can do. Through a process of elimination, such restrictions make running a detention regime harder, if not ultimately impossible. Restrictionism might be better than maximalism or some other alternatives. But it doesn't substitute for what no candidate is offering: a coherent reform plan.
That would be a proposal setting forth who is and who is not an enemy combatant, where and for how long and under what conditions such combatants can be held, and what sort of due process they are entitled to. True, reforming detention law is a big job, but no bigger than, say, reforming the U.S. health care system, which the candidates are eager to do. It deserves no less attention.
© Copyright 2007 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.