Try Them All

Based on this week’s Newsweek report, the Obama Administration appears to be committed to reproducing the failed Bush Administration policy of indefinite detention. The remarkable consensus among Administrations occurs in part due to the declining force of fundamental moral arguments, a trend that characterizes our postmodern era.

I will largely allow others to make the simple and entirely reasonable argument that giving everyone a fair trial is the morally correct thing to do because it is entirely obvious to anyone who still agrees with the argument, and totally futile against anyone who does not. The judicial apparatus of this country, whatever its faults, is the institution resulting from a history of evolution dating at least back to English common law, during which time it has had the rough edges polished by a wide variety of circumstances and participants. The open and fair trial system has worked for Tories, Confederates, Anarchists, Communists, Fascists and common criminals. Six hundred plus years of precedent cannot be set aside easily.

What results instead is a broken process. It has no exit, either for the detainees or for the Administration that oversees it. The longer it continues, the worse it gets; it does not go away by declaration, because there is no way to declare it into compliance with basic Constitutional or judicial law, and there is no way to reach a stable end state.

The real alternatives, as we already know but may not wish to admit, are to either try the detainees in an actual Federal court or to deport them back to the theater of conflict. It is now time to take one of these ways out, and find our way to a successful exit.