Josh Marshall says just about what I've been saying from the beginning.
But this latest decision should focus us again on the
recurring and as yet unanswered question: just what
are the rules here? The rule of law is principally a
matter of there being rules. What the rules are is
often much less important than that there be rules
and that they be followed. Thus far war on terrorism
jurisprudence hasn't so much been draconian or lax
as it has been a rather comical
make-it-up-as-you-go-along affair.
John Walker Lindh, a US citizen, gets a
straightforward civilian trial. Zacarias Moussaoui, a
French citizen, gets a straightforward civilian trial.
Jose Padilla, a US citizen, is held indefinitely and
without counsel as an enemy combatant. Yasir
Hamdi, another US citizen, is also an enemy
combatant being held indefinitely, but he may get a
lawyer. The folks down in Guantanamo, well, who
knows?
A military tribunal, civilian trials, various sorts of
detention -- cases can be made for each method of
proceeding. But the essence of the rule of law is
having rules in place for how you're going to deal
with people before you catch them, not making them
up afterwards.
We can debate about what the rules should be and when, but most importantly there should be rules. When talking heads get on TV and say with a straight face that the government should choose this system of justice over another one because it would be easier to get a conviction that way, our justice system has become a complete farce. If only it were funny.
