I’m hardly what you would call a legal scholar–I took one class on constitutional law in my tenure as a University student–but it seems like everything interesting lately to me is happening in the courts.

First you have the decision by the Obama administration to finally bring 10 of the Guantanamo prisoners to trial, 5 in Civilian courts in New York and another 5 in modified military.  While it’s nice that we’ve decided to bring x number of the people we hold in a legal black hole to at least some semblance of a legal proceeding, I’m not terribly happy about the continuing of military commissions.  Though, on the other hand, I don’t really see how you can have foreign prisoners of war tried in civilian courts.  So if commissions and civilian courts aren’t appropriate, then you should give them a courts-martial right?

Oops!  Did I forget to mention that they’re *not* prisoners of war?  I think they’re enemy combatants, or unlawful combatants, or men from mars for all we know.  The important thing is that they’re not prisoners of war.  Despite the fact that we’re conducting a “War on Terror".  Confused yet?

It’s not surprising, that the handling of detainees has been so schizophrenic, given the precedents inherited by a declaration of war.  Which, in all honestly, is probably scarier in terms of legal implications for American citizens.  States of war tend to produce very sketchy behavior by the government towards civil liberties and press freedoms.  Compounded by the fact that we’ve declared war on an idea, which are notoriously hard to vanquish (see: racism, sexism, et al), you’ve got a perfect storm of totalitarianism.

Not to say that we’re actually anywhere close to that, but it’s unnerving to say the least; and who’s to say that another terrorist attack or credible threat won’t push us closer to that point.  At the beginning of the Summer, President Obama declared that “some detainees who are deemed too dangerous to release but too difficult to prosecute” will be held in indefinite detention.  Which as far as Western liberal democracies go, is a big no-no.  I understand the argument that:

1. They’re not US citizens
2. They’re probably f**king terrorists

To which I would answer that a) that’s a slippery slope, and b) who’s to say?  We already prosecute foreign nationals that commit crimes in the United States, or at least request their extradition.  But detaining them indefinitely flies in the face of rule of law and democracy.  It’s unfortunate that the Obama administration didn’t have the will to call an end to the war on terror in real policy terms, instead of merely renaming it to a “Overseas Contingency Operation”