News flash: Osama bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to U.S. custody.
What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism—and total confusion.
This is the shameful truth: six and a half years, four major Supreme Court cases—including June’s landmark ruling giving detainees habeas corpus rights—and endless lower court litigation after September 11, 2001, we have no agreed-upon rules for handling this situation.
Would the two archterrorists face trial, and, if so, would they face it in a military commission, a court-martial, or a federal court? Would they face detention without trial, and, if so, for how long would that be allowed? Would the military or the CIA hold them, with what burdens of proof, and under what set of rules? What standards would govern their questioning, on which so much would undoubtedly ride?
None of these questions has an answer on which Americans remotely agree.
Assigning blame for the impasse is a mug’s game; there’s more than enough to go around. The Bush administration conflated its legitimate needs in the fight against Al-Qaeda with its own desire to consolidate executive power. Administration critics have made the mirror-image mistake, confusing their opposition to Bush and Cheney with opposition to the often reasonable steps the administration has sought to take.
The courts have used the cases that have come before them less to define the rules of the game than to carve themselves a seat at the table over foreign and military affairs—areas in which their role is historically limited.
Meanwhile, Congress—the most democratic branch in government— has often been missing in action while the two other branches fight it out.
The legislature keeps passing the hot potato to make sure it’s not lawmakers who get burned.
What’s more, our national debate has shown an unerring instinct for the capillaries. We have earnestly argued over the location of detention sites instead of debating the rules that should govern detentions. We have argued over the scope and reach of habeas corpus instead of defining the category of people it is lawful to lock up outside the criminal justice system. We have debated retroactive immunity for telecommunications companies, yet barely begun to imagine the surveillance laws the country will need for the next century.
Until we have a serious and comprehensive engagement over a set of issues that only Congress can fruitfully address, consensus will grow more elusive. And our ability to prosecute the war on terror will suffer as executive branch agencies, in doubt as to what’s really legal, become more riskaverse.
Digging out of the hole we’re in starts with the president. Only he can explain to Congress—and to the people—what powers he needs to fight and win the war. Yet Bush has missed his many chances. He has no trust on Capitol Hill anymore. And even if the stars were aligned, he can at most speak credibly to only a small fraction of the country.
That leaves the job to one of two men: Barack Obama or John McCain. For the moment, both are keeping their options open, speaking more in mood and tone than in real substance. In the heat of a campaign season, that’s probably good. Anything one candidate says now, the other has to oppose, thereby pushing Americans further apart.
But both would-be commanders in chief need to make clear—now— that working with Congress to clean up the mess is a top priority. And when one of them takes office, writing clear, effective, and sane rules for dealing with our mortal enemies should be every bit as high on the agenda as fixing the economy and health care.
It would be quite simply intolerable to arrest bin Laden and then have no idea what to do with him.