Important Questions Answered Long Ago

Benjamin Wittes op-ed:

Solving the Guantanamo problem means making important decisions about detention policy in combating terrorism more generally: When, if ever, should the United States engage in preventive detention of terrorism suspects? If and when it does, should it treat them as enemy combatants under the laws of war or under some other body of law, perhaps a new detention statute? What rights should they have? What should the government have to prove about them, to what standard of proof, and in what sort of forum?

Notwithstanding the idea projected by some members of his camp that closing Guantanamo is simply a matter of will, Obama cannot just wish these questions away. Indeed, they defy answers in the absence of a systematic and rigorous review of the detainee population itself, including the classified information about each prisoner.

It's remarkable to me that anyone would say that the law should proceed from "a systematic and rigorous review of the detainee population itself." That presumes a process - a review - that would in turn establish the level of process - a trial - that the prisoners would receive.

This isn't how we do it in America.

In this country, we start with the law - specifically, the law contained in the United States Constitution. From that law, we derive a set of principles and practices that are then applied to individual prisoners. In that application, we determine whether a specific individual is guilty or not guilty, and if guilty, what punishment they should receive.

Mr. Wittes wants to interpose a review that would determine what process - what law - should apply to each prisoner. This presumes the review would be a wider-ranging inquiry than a trial would be. It also presumes that this review would be more accurate in discerning the truth. But the reason the legal principles we uphold in the Constitution are the law is that we as a society believe they are the best way to arrive at the truth in a legal proceeding.

Mr. Wittes is quoted elsewhere as saying:

"There will be a sobering moment for enthusiasts of a 'try and release' regime when people start looking at the contents of those detainee files," said Benjamin Wittes, a Brookings Institution fellow and the author of "Law and the Long War," which advocates preventive detention backed by a national security court.

He assumes that the assertions contained in detainee files will be as impressive others as they apparently were to him. This just what Duncan calls the "GOP Daddies" tactic, in which somber men in suits presume to tell others that their judgment is better than theirs, and "that Something Very Serious Was Happening and Something Needs To Be Done." Note the phrase "try and release", a parallel to "catch and release" - a fishing term, but also an expression of futility in law enforcement and illegal immigration circles.  To Mr. Wittes, trying someone and finding them not guilty equals doing nothing at all.

By proposing this standardless review as a means of allocating the amount of process that is due each prisoner, Mr. Wittes is suggesting that we undermine our system of justice. If we mean to throw out the rules in these cases, it begs the question why we ever follow the rules that are already established in our legal system. These people are dangerous - even though no proof has yet been presented - this line of argument goes, so we have to allow government officials to say whether they should receive a fair trial, something less than a fair trial, or no trial at all. But government officials always say a defendant is dangerous before the trial happens, but we presume the defendant is innocent and make the government prove its case. If we abandon that principle in these cases, why have the principle at all?

Apply the law to the facts. If the government can't make its case, then the government should not be holding the prisoner. This is how we do it in this country, and that's how we should go about closing Gitmo.