As Allahpundit noted last night, the push to create an indefinite-detention law to allow the government to hold al-Qaeda terrorists is not a new idea, but it is a bad idea. It springs from a return to the law-enforcement model and the desperation of an administration that has begun to feel the limitations of their approach. That’s why the White House has once again begun floating trial balloons to which it hopes Congress will react with legislation, and unfortunately some on Capitol Hill — including one prominent Republican — want to provide that cover:
The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama’s plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday.
Last summer, White House officials said they had ruled out seeking a “preventive detention” statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general “law of war” principles permitting detention of enemy combatants.
However, speaking at a news conference in Greenville, S.C. Monday, Graham said the White House now seems open to a new law to lay out the standards for open-ended imprisonment of those alleged to be members of or fighters for Al Qaeda or the Taliban.
“We’re beginning to look at the idea we need to change our laws come up with better guidance” for judges handling cases of enemy combatants, Graham said. “I’ve been talking to the administration for the last couple of days. I’m encouraged that we’re going to sit down and do some of the hard things we haven’t done as a nation after September 11.”
The reason Graham and others want a law allowing for indefinite detention is the push to close Gitmo. As long as terrorists remain incarcerated at Gitmo, they remain in military custody outside the US, with limited application of criminal-justice laws. The White House wants them housed in a civilian center in Thomson, Illinois, which would create all sorts of legal problems for the government. The US has no law that allows the government to indefinitely detain anyone within the criminal-justice system, and of course has the Constitutional duty to respect the right to a speedy trial by a jury of one’s peers, with the right to face one’s accusers in open court.
There are two main problems with pursuing an indefinite-detention law. First, any exception carved out of those Constitutional rights will only serve as a precedent for further exceptions. This is truly a slippery slope. Right now, the lawmakers say that the exception will only apply to al-Qaeda terrorists, but what about child molesters? There has been an ongoing debate for many years over the lack of rehabilitation of serial molesters. When they have served their prison time, they get released — but some communities have petitioned for indefinite detention of molesters beyond their sentence. And after child molesters, how about rapists? What about gang members, and Mafia racketeers?
Once we’ve established that the government can make exceptions in the legal system to basic Constitutional rights, those exceptions will be the equivalent of Lay’s potato chips. We won’t be able to stop eating at just one.
The second problem is that there really isn’t a problem at all. This is a solution for a completely artificial condition caused by an insistence on using the legal system for a situation it wasn’t designed to handle. Captured terrorists are illegal combatants in a war conducted against the US and its allies. The military can hold captured combatants until the end of hostilities without any involvement by the American legal system at all. All that is required is due process within the military system to satisfactorily determine that the detainee belongs in custody. If the terrorists have signed up for a perpetual war, that’s their problem and not ours. We can choose to release them or not depending on our own goals and decisions.
The founding fathers kept the civilian legal system distinct and separate from the military for good reasons. They did not want an American version of Cromwell’s Army violating the natural rights they outlined in the Constitution. We should respect that wisdom and keep our military affairs out of our civilian courtrooms altogether, and then there would be no need for a distinctly dangerous notion like indefinite-detention laws for Americans.