06/22/2009 05:12 am ET Updated May 25, 2011

To Detain or Not o Detain

An epic test of will has been on the brew and the ferment is nearly complete. Fear is the long suit of the Republicans. Former Vice-President Dick Cheney has been particularly hysterical of late. His motives may be viewed as simply as what he says. He thinks you should be afraid of the terrorist under your bed. In his fervent entreaties to your fear, he assumes you will trust those that have always fed that fear for gain. Odd.

Lost in the meaningless hyperbole of Cheney and an afterthought fifth point on Thursday's Obama to-do list on GITMO, is an opportunity. It is an opportunity to discuss, in the light of day and with some hope of reaching a Constitutionally reconcilable consensus, just how do you treat a terrorist slash soldier of a new order of conflict, a war waged by a tiny group of radicals on a global population, and the United States in particular?

The initial rationale for GITMO was to detain "enemy combatants", prisoners of a war that did not fit any model of adversary more than terrorist. Much has been lost sight of and confused by the miss match of honorable adversary of war, worthy of Geneva Convention guarantees, and the loathsome terrorist who is somehow still a soldier in a global war. On the one hand, it is internationally permitted to detain the soldiers of an adversary in a declared war. It is only permitted to try them for crimes if they have committed crimes over and above the dealing of death to soldiers of the opposition. There are many instances of crime in war, from terror bombing to collateral casualties. What constitutes a crime is, effectively as always, a matter of the will of the public to proscribe such behavior going forward.

The actions of the Bush administration confused and befouled the waters of international legal thought on the issue so much that it has rendered the current state of argument futile. The prisoners the Untied States holds in detention are neither soldiers nor proven terrorist criminals, but are merely in legal limbo. They can't be successfully prosecuted and public fear of them has been whipped up to the extent that freeing them would be political suicide.

A wise man picks his battles, when and where he fights. Obama did not want to fight here, there is much too much else to do and so much more wrong to undo than what wrong has been visited on the detainees of GITMO. But here it is. Cheney picked the fight along with his unwitting allies on the left. We now have a nation in peril of financial meltdown, healthcare drought and fiscal collapse that is distracted by the issue of whether or not GITMO can be closed without endangering a single American hair follicle. So be it. Let ten thousand children perish from lack of diagnosing illness while wringing our hands over GITMO closing. Cheney loves this stuff. He was made for this, because he does not care.

Application of existing law is sufficient to deal with all this, as Obama has pointed out. The problem has been, and is, that existing law was not applied for seven years. Those detained might all be released under our Constitution for lack of a speedy trial. The consequences of that are serious, and the blame for it does not lie with the current Administration that did not so screw up the prosecution of justice that justice cannot now be served. Cheney is now threatening to blame Obama for a problem that he created along with his Oval Office stooge. "Mess" is right.

Now, from the left, justice must be served. That it has not been served to date is not an issue. If Obama's fifth category of persons dangerous to the U.S. and likely to do harm is real, and it probably is, does it not serve the best interest of the public to continue to detain them as prisoners of war, even though that war is undeclared? To a public suffering from the hangover of seven years of right wing propaganda it probably seems like an imperative to keep these people in custody, foolish to let them go. If that does not square with the law, then the more myopic of the public are likely to conclude that the law and the courts serve them not.

President Obama did well today in explaining the truth and consequences of undoing the misdeeds of Cheney and his Oval Office stooge. His fifth category troubles us all. Not criminals in any traditional sense, such fifth category persons are nevertheless on the same the side of international issues as avowed and convicted terrorists. If for that reason they are assumed to be more likely to commit acts of terror in pursuit of their like interests with those known to commit acts of terror, they still cannot be detained as criminals. There is nothing for which to try them except sympathies. Sympathies are not unlawful.

It is a monumental test of the will of civilization to live by the rule of law. We may, from time to time, find that the rule of law prohibits actions that we might find reasonable were it not for the reasonableness of the law itself. Absent an internationally recognized and declared war, no one can be detained as a POW, or "enemy combatant", for the duration. Such a war has no end and there is no duration of a non war. Tricky. So do we turn our backs on all the very useful and civilizing work that has been done to subdue the atrocities of mankind's history and resort to the brute rule of might makes right? That is the question.

A fifth category of GITMO detainee seems unlikely to contain anyone now there. It seems likely that all will be tried and convicted or released. This fifth category can only exist if some one of them is found to be in it. It is not a problem until we see the arguments for and conditions for including someone in that category. What it is right now is a political balm, a promise to be exhaustive in dealing with detainees, a last resort into which no one can be subjected without suspension of the rule of law or extraordinary revision or interpretation of the law. Witness the context of protracted discussion of the role of congress and the courts in oversight in Obama's speech. If it is to be done in even one case, it will be done by the law, nationally and internationally. But at this point it is a riposte to Cheney and the Republicans and nothing else.