A nation of laws

I was probably as surprised as the next bleeding heart liberal that it would be Barack Obama, a Constitutional law professor, who would come up with the idea of formalizing our "perpetual preventive detention without charges or trial" policy for dealing with terrorist suspects.  I shouldn't say "suspects," actually; maybe "suspicious individuals" or "suspicious Muslims" would be closer to the mark.  In his recent speech, delivered ironically enough in front of a mural of the Constitution at the National Archives, Prez O outlined the 5 categories of individuals detained by the U.S. held at Guantanamo and elsewhere.  That actually would be a good movie title for Michael Bay or Ang Lee or one of those guys who concoct movies for teenage boys, mainly using an Apple computer instead of a camera.  "The Fifth Category."  That's not bad.  In fact, instead of writing this blog...

Anyway, the Fifth Category is defined as a bad guy who can't be tried for war crimes, or violations of U.S. law, either in a civilian court (U.S. federal district court) or a military commission (juris macropus rufus), because no conviction is obtainable. Thus, it follows that there's no sense in charging such a person with a crime.  What you might think follows from that is that you let the guy go, but not so fast.  If the Executive Branch concludes that such a person, while more or less immune from the legal process, is nevertheless "dangerous," then he's simply detained indefinitely.  For how long?  Well, the President hasn't really said, except to say that his version of the Great War on Terror (GWOT) should probably last at least another, oh, ten years.

This seems to imply that a Category 5 Detainee will be held until the GWOT is over.  However, as much as I respect President Obama's intellect, it seems to me he has made a fundamental error in logic here.  To declare the GWOT over, I suppose we have to be assured that no terrorists anywhere pose any threat to the United States whatsoever.  If we don't mean that, what could we mean?  The existence of even one Category 5 detainee (and let's face it, there are going to be a lot more than one), means that a corps of hardcore, dangerous terrorists remain alive.  If you let them out when the GWOT is declared over, then you've started the GWOT all over again. Suppose there were 19 Cat-5 Detainees.  Well, that's just the right number for another 9-11, isn't it?

So you can't let them out ever.  That's not fanciful, that's logic directly connected to the policy Obama announced.  So that leads to the next logical conclusion.  Why are we keeping dangerous Muslims alive in U.S. custody?  We can't try them, because we can't prove they've committed any crime, even in a rigged court room run by the Department of Defense and staffed with soldiers where hearsay is allowed and evidentiary rules are "relaxed" in favor of conviction (the Military Commission route).  We can't let them out because they're dangerous.  We can't set a release date because that is a contradiction in terms with the end of the GWOT.  

So wouldn't the most logical handling of dangerous detainees who can't be convicted in any forum simply be summary execution?  Isn't that what Pinochet did?  Hitler?  Stalin? Mao?  Of course that's what they did, because a dangerous dissident or troublemaker is most effectively put out of commission by killing him.  Then when the GWOT is finally over for good, no residual corps of terrorists remains in custody subject to release, except for the Supermax or military brig prisoners actually convicted with determinate sentences, but that's a logical problem which makes the whole idea of Category 5 a little silly and we don't want to do that.  We're being serious here.  Introducing all the logical inconsistencies in a piece of Right Wing pandering by the President is not my intention.

Or, alternatively, we could use the Due Process Clause of the Fifth Amendment to the United States Constitution, which really is more than just a backdrop for a pretty speech eviscerating civil liberties.  It's worked for a very long time.  Why not give it another shot?