Deborah Pearlstein, posting at Balkininization on the subject of the Obama Administration’s “preventive detention” policy, uses a simile where, in a modern day equivalent to an earlier war, “the U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians.” He is tried for those crimes but the witnesses fail to appear and he is acquitted. Ms Pearlstein addresses the claim that he could continue to be held as a Prisoner of War despite the acquittal of those crimes.
I have trouble following her conclusion, which apparently depends on the legitimacy of the AUMF for some reason, but the argument itself illustrates to me the difficulty with the whole “War on Terror” fallacy, which General Counsel Johnson claims as justification for holding the Guantanamo detainees indefinitely; they are prisoners of the war on terror.
First we had the “war on drugs,” which is absurd enough. Drugs don’t shoot back, so how does that war work, anyway? Now we have a “war” against an emotion. Maybe this is a solution to our crowded courts; once you capture a murderer you can dispense with all of the collection of evidence and juries and stuff, just declare war on him and hold him forever as a prisoner of war.
The people we are holding in Guantanamo have not been captured in uniform and, almost without exception, have not been taken anywhere near a battlefield. The trials in question are not for crimes unrelated to the basic reason for their detention, the trials are central to their detention. It’s not a case that we’re holding them as terrorists and, having been found not guilty of rape and murder we can continue to hold them as terrorists.
We are holding them because they have been charged with being terrorists, which they claim they are not. We are putting them on trial to prove that they are terrorists, and claiming that having failed to prove our case, with the court having found them not guilty of being terrorists, that we can continue to detain them indefinitely anyway.
Detaining them indefinitely because, apparently, we’re afraid of them.