Try the Detainees
There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of “preventative detention” almost immediately upon taking office on January 20, 2009.
Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees, all of them. Because this is a unique armed conflict, traditional methods of war detention are really not available – particularly as a matter of policy. We simply can not close Gitmo, and bring all of the associated problems and issues of detention into the United States. To me, preventative detention has been the real problem in Gitmo. We can not hold people indefinitely without trying them in this war. Certainly, the military commission process, in the past, has never been used for this purpose. Instead, the political branches should be working long and hard at constructing, as Ben suggests, a new court system that might better capture the nature of the threat – a mix of the law enforcement model and warfare tribuals. In legislatively creating the new court, there is the opportunity to have a new court system capture all sides of the debate. It could be the answer to achieving a real balance between the desire to promote the rule of law while still ensuring national security is paramount. The key to me, however, is that such a system must be adjudicatory in nature and function.
I believe we will be discussing the possibility of a new court over the next day or so, but it seems if properly constructed, such an Article III, civilian run, new system might be the answer to issues of habeas stemming from the Boumediene case, preventative detention, coercive interrogation, trials etc.