05/21/2009 06:17 pm ET | Updated May 25, 2011

Guantanamo: Redux

The Obama administration's head-spinning policy shift on the prosecution of suspected terrorists has left its liberal base and human rights advocates wondering whether they had freakishly witnessed the second coming of the Bush presidency.

After deciding soon after the inauguration that Guantanamo's military courts should be suspended in favor of either deporting detainees to other countries or conducting civilian trials within the United States, the administration is now reviving the military commission model--with certain evidentiary and procedural modifications--that had been the target of such revulsion during the campaign.

Moreover, 100 of the 241 Guantanamo prisoners may end up being held without trial or even formally charged, including Al Qaeda operative, Abu Zubaydah, who infamously was subjected to coercive interrogation techniques in secret CIA prisons.

Could it be that President Obama suddenly has more sympathy for the way his predecessor handled the detention and prosecution of suspected terrorists?

We have all just entered the War on Terror Twilight Zone.

Perhaps this change of heart within the administration should come as no surprise, given that it is predicated on real national security concerns. In the aftermath of Guantanamo, the following questions are producing disturbing answers: Where are we to imprison suspected terrorists knowing that indefinite detentions are impermissible under the Constitution; how will civilian trials treat evidence and confessions that were obtained through legally suspect interrogation techniques; can terrorists be prosecuted in American courtrooms under ordinary criminal law statutes and with a strict adherence to constitutional principles without resulting in their immediate release?

Obviously there is a consensus among government lawyers that civilian trials will not work if the endgame is keeping Americans safe. Ironically, however, isn't that why President Bush created Guantanamo in the first place: to overcome the procedural, evidentiary and constitutional obstacles that are avoided with military commissions?

Here is the dark truth that all liberal lawyers know: If you want to catch the bad guys, overinclusiveness is better. Of course, with its procedural overreach, lax standards of proof, absence of speedy trials, and disregard for predicate elements of criminal activity, overinclusiveness is largely unconstitutional.

Such compromises on due process and the rule of law are, admittedly, horrifying. But surely they are no more gruesome than the murderous events of 9/11, which gave rise to these radical departures from constitutional requirements.

The star-chamber implications of Guantanamo offend our values and are unbecoming of a liberal democracy. But those who have been detained in such facilities are, largely, hardened Al Qaeda operatives and sympathizers who dream of more American deaths. Future 9/11's were no doubt averted precisely because of these aggressive, albeit wholly unconstitutional, measures. The lack of transparency of these proceedings is frightening. Yet, had they taken place in American courtrooms without enacting new laws that deal specifically with the unique circumstances of terrorism, the detainees would have been set free.

Sometimes it is necessary to order a la carte off the constitutional menu. After all, while the Constitution is an enlightened document, it is also an imperfect one. The guilty often go unpunished, which is tolerated with ordinary crimes. With extraordinary ones, however, such gross injustice is morally unbearable.

It is for this reason that pedophiles do not receive their full complement of constitutional protections. And the Nazis were surprised to learn that the Constitution did not make the trip to Nuremberg. In standing judgment over their genocide, American prosecutors realized that the Constitution would have led to the acquittals of mass muderers. Legal principles and defenses available to common criminals were therefore not awarded to Nazis, nor should they be reflexively granted to Al Qaeda operatives.

As the Supreme Court in other cases has ruled: The Constitution is not a suicide pact.

Pick your poison: Preserve the rule of law and our values at all cost; or risk surviving a repeat performance of terrorism on American soil. Anyone who believes that the choice is neither that stark nor desperate is obviously watching a different movie altogether.

Actually, President Obama understands this. True liberals are also pure pragmatists, and as a former law professor he knows that a strict adherence to the Constitution when it comes to terrorism will quite possibly replenish the ranks of dedicated jihadists. As president he can't have skyscrapers falling down under his watch.

The Founding Fathers never imagined how ingenious mankind would become in mass death. Habeas corpus was never intended as a legal principle to assist those who have already demonstrated their capacity to bring about American corpses.