Saturday, May 23, 2009

Due Process for "Dangerous" Guantanamo Prisoners

The essence of the problem with detaining allegedly dangerous prisoners is the endless nature of the terrorism war. When we fought Germany we detained prisoners, dangerous or not, until the war ended. No problem. But when the war doesn't end, whether because the opposition is not politically legitimate, or cannot reasonably be expected to control its warriors after a "peace" is agreed (such as, say, Hamas), then fundamental fairness requires some process for judging the dangerousness of battlefield prisoners, and those found to pose risks must be endlessly detained. To release them is suicidal.

What I think Obama wants to do, as do I, is to ensure that the judging process be as fair as possible--due process. But what is due process under these circumstances? We know what due process means for people accused of crimes. And as Sen. Whitehouse recently noted, we even have due process standards for citizens facing endless detainment in civil proceedings. But those standards work here because they apply to people living in a reasonably ordered civil society where there exists a great deal of information about people who have been observed under normal circumstances, and witnesses who can testify under oath. Those circumstances don't usually exist in the case of battlefield prisoners. Consequently, we must create a different set of procedures to provide as much due process as possible under the circumstances of their capture. To summarize: our notions of due process simply don't apply to battlefield prisoners facing endless imprisonment. We need to develop the best notions possible to fit the circumstances of those battlefield prisoners.

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