Yesterday's ruling in the Guantanamo habeas corpus review of Osama's chauffeur, excluding "coercive" evidence, drives the legal process towards total meltdown on detainees. Further, the judge ruled that no statements under interrogation are be admissible, unless the prosecution can vouch for the methods used by interrogators to extract the statements. Absent video, establishing legitimacy will be very difficult. So, forget about confession evidence drawn from aggressive interrogation being used against Gitmo detainees. And that is probably most of the evidence in most of the cases. Instead of holding detainees indefinitely without trial as unlawful combatants, the administration walked into a trap set by attack-dog lawyers: increasingly, legal process akin to that for domestic criminal trials will be imposed, a standard that will make convictions rare.
True, those acquitted can still be held. But just how do you think that will play with "world opinion"--already up in arms over Gitmo? It will play as the ultimate war game of "bait & switch"--the legal process established by the administration will be derided as a total fraud. After the firestorm, holding the detainees will prove politically untenable.
Meanwhile, Attorney-General Michael Mukasey, the superb judge who presided over terror trials in the 1990s (and needed 24-hour security to guard his life afterward, for years), told an American Enterprise Institute audience (full text) that Congress should pre-empt federal courts by passing a law barring admission of Gitmo detainees into the USA, for any reason whatsoever; more detail of interest is in his text. Well-intentioned is the distinguished judge, but where does he think we can send them? To Islamic countries that will release them forthwith? A Wall Street Journal editorial predicts (rightly) that the process will "bog down in a Babel of conflicting procedural and legal rulings" and that (right again) a Democratic Congress will do nothing.
Thus the meltdown of administration policy on detainees continues, with no end in sight. Thus the folly of trying to have their cake (legal proceedings) and eat it (indefinite wartime detention). Holding detainees as unlawful combatants with bare-bones legal procedure would have clarified the issue. Sure, the courts might well have meddled and insisted otherwise, but at least the administration's policy would have been coherent and easily comprehensible to voters, most of whom are not lawyers. Once you concede that detainees are entitled to legal process, you get into what process is due. And in American jurisprudence, it is hard to limit process; it goes against the grain of our judiciary and the bar.
Our legal system is the worst possible for fighting a war against unlawful combatants. Its biases all lean in the wrong direction: against effective terror-fighting: prime focus on rights of the accused, disclosure of the government's case in detail, lengthy, multiple review of lower court rulings--not infrequently, prior to final decision, the glare of media publicity, you name it. All these are glories--except endless rounds of proceedings--in the world of criminal law. They are potentially lethal here. As Thomas Jefferson once said, justifying his order to seize a British vessel while Congress was in recess: "To lose our country by a scrupulous adherence to written law, would be to lose the law itself...thus absurdly sacrificing the end to the means."
The administration and its supporters failed to grasp thus fully. It--and we--will pay the price, as detainees are released and the legal process--driven by lawyers steeped in the arts of a "lawfare" that piles on unilateral constraints on our ability to fight, gather intelligence, hold dangerous detainees, et., while our adversary remains free to conduct warfare alone.