Last year some of the top military commanders in charge of Guantanamo prison came to Monterey to brief the community on conditions at the prison and the government’s policy towards detainees (An Air Force brigadier general named Hemingway, a Naval rear admiral, and an Air Force colonel). This was part of a larger campaign to address the public’s growing unease with an unjust system that was weakening America’s credibility in the world.
During the Q&A I asked the brigadier general how we could claim war powers to hold people without charge when the “war on terror” was so ill-defined and could perhaps go on indefinitely. The general responded that this was a serious question that had yet to be addressed, but which needed to be. He said that terrorism posed a new threat that required new definitions and that the government still hadn’t fully grappled with this issue.
A year later, and five years since 9/11, we still don’t have a clear definition of what this conflict is, and what defines success. The new detainee bill that recently passed in Congress strips Guantanamo prisoners of the right of Habeas Corpus and puts them in an indefinite legal limbo.
That we are this long into the struggle and still have not come up with a sensible definition of the conflict is a disgrace to our American system and the rule of law. By this time into WW I and WW II we had prosecuted the wars and declared victory, yet today we don’t even know what “victory” means. This wouldn’t be so terrible is it weren’t for the immense extensions of executive power and the diminishment of civil liberties that have accompanied this struggle, which we are routinely told will take generations.
The contradictions of our current policy were no more evident than in a recent NPR interview with John Yoo, the primary architect of the Bush Administration’s legal strategy in the post-9/11 period. While Yoo makes a persuasive case that presidents have always had the power to hold people indefinitely who are caught on the battlefield, when pressed to say how long that power can reasonably last he reiterated what the general said last year: we don’t know since we haven’t defined victory.
But Yoo made an additional statement that demonstrated the Administration’s lack of seriousness on the definitional issue, and contradicted President Bush as well. Yoo said that perhaps a good metric for defining the end of the conflict would be when most of Al Qaeda’s top leaders are captured or killed. While this sounds reasonable, it directly contradicts Bush’s own contention that the war is much broader then Al Qaeda. Also notably absent from Yoo’s remarks was how the Iraq conflict relates to his definition, since none of the major Al Qaeda figures are in Iraq. If Yoo and the President can’t agree, it seems clear that the Administration is not really serious about defining the “war on terror”.
This should come as no surprise.
The Bush Administration does not want to define the war because then it would have to justify an entire set of policies that have specious connections to the true terrorist threats, and it would also by definition constrain its own power. The result is that we are stuck with an Orwellian “war without end” in which presidential power is virtually unchecked and anything the president deems a threat can be lumped under the general heading of the “war on terror”.
My guess is that Bush will leave office without ever articulating a definition of success in the “war on terror”. We will still have hundreds of alleged terrorists in U.S. custody, many of whom were grabbed in large sweeps and are likely not terrorists, and who will not get the chance to contest the charges against them. Recall, these are the same prisoners that are constantly referred to by Bush as “some of the world’s most dangerous terrorists”, when in fact they are alleged terrorists since little evidence has ever been brought against most of them. This is precisely why we need the checks and balances and judicial oversight that this Administration has constantly tried to supersede. (What is worse is how they have cynically implied that anyone who questions their policies is abetting the terrorists.)
It will be up to the next president to clarify this struggle and restore our system of civil rights and checks and balances (There are signs that the Democratic Congress may begin work on this). We can argue all we want about the fine points of presidential power (and reasonable people of differing political persuasions can disagree), but it is unarguable that the Founders did not intend presidential war time powers to last for decades within the confines of an ill-defined struggle. That is simply un-American.
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