Saturday, January 16, 2010
Who's really an enemy combatant, and how do we know?
This is the first of what may be several comments I'll be posting on this topic. What's struck me is this: of the Guantanamo detainees whose habeas corpus cases have been completed, quite a few have been successful in demonstrating to the courts' satisfaction that the government has not shown a basis for holding them. This record certainly raises the possibility that we have been holding men without justification for many years. For now I just want to raise one other possibility: that the standards of evidence being applied in these habeas cases, though they are by no means as rigorous as those that would be applied in an actual criminal prosecution, are still just too demanding for this situation. If, in Afghanistan, our forces capture suspects based on information, often second-hand information, communicated by people of dubious reliability, they certainly aren't operating by the standards we demand for police work here at home. But this isn't police work, and it's not home -- and so it may be that the lesson of the habeas cases so far is that this particular effort to infuse judicial standards into the operation of a war is just not tenable. Or, again, it may be that we have been holding people for no good reason for a very long time.