These are vexing days for those who (a) want to press the war against terrorism, and (b) want to maintain the usual protections against unnecessary accretions of state power. The recent headliner in this carnival is the Supreme Court ruling on Osama bin Laden's bodyguard. What was challenged was the legality of the "military commission" that put him on trial at Guantanamo, denying him access to his accusers or to the evidence presented to the judges (military) by the prosecution.
The first rule is to reason calmly about what happened. And best to begin by reflecting on the vote within the Supreme Court. It was posted as 5 (illegitimizing the military commissions) to 3. But the chief justice had recused himself because he had voted on the same issue downstairs, while a member of the lower court, affirming the legality of the commissions. This means that the vote was de facto 5-4, which is something short of a constitutional amendment on the matter of the military commissions. What's more, the majority on the court invited Congress to write a fresh law correcting the weaknesses of present arrangements while satisfying the security objectives of the Guantanamo enterprise.
The elation of those who welcomed the decision (the first shill was The New York Times) isn't very directly related to concern for bin Laden's bodyguard. The Times is waging a crusade of its own against what it deems excesses by the executive branch. Conservative Americans are temperamentally disposed to welcome sensible abridgments of state power, executive, legislative -- and judicial. But hothead anti-Bushism isn't a satisfactory nutrient in that perpetual war against statism. The court's ruling is being viewed against the swelling of the executive branch at a time of increased surveillances of individuals and of confidential arrangements with international bankers aimed at sniffing out smelly financial transactions.
The motive of the Bush administration is to harness technology for our nation's defense. To do this with sophistication is to acknowledge that the jihadists are not bound by conventional military strategy. In Switzerland, tunnels and bridges are wonderfully provided with means for stopping a tank attack in its tracks. Such technology is not effective against airplanes zooming in on skyscrapers, and the hypothetical possibility that bin Laden's bodyguard can provide a key to a missing link must be weighed.
The question is whether the president, exercising his powers as commander in chief, can handle the current problem by improvising what he deems suitable makeshift procedures. What we have, at Gitmo, is 450 men, mostly Arabs, who are not members of an armed force organized by a sovereign power, but who have been involved in hostile activity against the United States and coalition allies in Afghanistan and Iraq. Nobody, in the chorus of approval that greeted the Supreme Court ruling, went on to say that the bodyguard should be freed. The president is putatively correct in holding him in detention -- the court is not ruling on that point. But what transactions in the order of justice are appropriate? If we wish to establish his "guilt," by what protocols are we bound?
Something more, the Supreme Court's narrow majority holds, than that the executive branch has found it convenient to proceed as it has. It becomes a question of legislative ingenuity to devise the means to keep suspects from returning to the ranks of terrorists while we attempt to counter the great terrorist offensive.
We do have a huge psychological burden. It is that the war we're engaged in has no realistic terminus. Assume that the Iraqi insurgency were overwhelmed by the end of the year. That would not mean, in the engagement we are pressing, an end to the jihadists.
The scene in Afghanistan, as it happens, is worse by far than it was even a few months ago. Perhaps the Taliban have no concerns for Islamic advancement beyond reinstalling themselves in Kabul. But bin Laden is a soldier of international appetites. It is by no means safe to conclude that a statute of limitations will clock in after any specified historical development, when what is left to do amounts to a kind of denazification.
And this means that the prospect of years in Guantanamo faces the bodyguard protected by the Supreme Court. But faces us also, and the American public doesn't go in for indefinite detainment.