Thomas Jefferson said it best: “When, in the course of human events, it becomes necessary for one people to [do something drastic that affects the status of other nations,] a decent respect to the opinions of mankind requires that they should declare the causes which impel them. … To prove it, let facts be submitted to a candid world.”

The founders of the United States asked for no one’s permission to declare our independence (although they needed help from France). Nevertheless, they considered themselves obliged to submit “facts” in support of their decision. If their allegations had been false, then they would have failed the “global test,” as the United States did in 2003 when we presented a false rationale for our invasion of Iraq.

In my opinion, David Luban’s 2002 article in Philosophy & Public Policy Quarterly (pdf, pp. 9-14) posed the Guantanamo problem better than anything I have seen since. To paraphrase him very loosely: A state can legitimately hold someone against his will under two distinct circumstances. First, it can detain an alleged criminal in order to try him and prove that he knowingly committed a specific crime. If he is found guilty, the state may imprison him punitively, regardless of whether he poses any present or future threat. Second, the state may hold an enemy combatant during a war. The government need not allege or prove any violation of law, or even a hostile intention on the part of the individual prisoner. However, such confinement cannot be punitive, and it must cease immediately when hostilities end.

We do not want governments to cherry-pick the most convenient aspects of these two situations. But that is exactly what we see in Guantanamo, where prisoners are treated as combatants (insofar as they are detained without criminal charges or due process)–but also as criminals (insofar as they are held individually responsible for their actions and offered no hope of a negotiated release when the “war on terror” ends). This convenient mixing of two sets of norms certainly sets a dangerous precedent for civil liberties.

However, I think that the U.S. Government faces a genuine dilemma. (I’m now speaking for myself and not paraphrasing David Luban.) Hostile fighters picked up in places like Afghanistan and Iraq cannot be held for the duration of hostilities, because they don’t belong to organized, hierachical groups with leaders who can possibly sign peace treaties. Nor can they be prosecuted as criminals under US law, which doesn’t apply where they were captured. In many cases, they didn’t even violate local laws. Yet some of them, surely, pose a genuine danger and can cannot simply be let go.

So what to do? I would suggest the following steps:

1) State very clearly and publicly that special circumstances arise when combatants who hold foreign citizenship are captured on foreign soil, fighting the US on behalf of loose networks instead of states. They cannot be accorded the full set of rights held by other categories of people, such as US citizens, people arrested for violent acts or conspiracies on US soil, or enemy soldiers fighting for formal organizations. The treatment of these Guantanamo-style prisoners sets no precedent for criminal law or the law of war. It is a regrettable exception.

2) Try to minimize the number of people held under these unusual circumstances, by (a) releasing anyone who is not a significant threat; (b) prosecuting anyone who is alleged to have violated US law; (c) turning over to foreign countries anyone who is alleged to have violated their laws, as long as these countries honor due process and human rights.

3) Accord appropriate but limited rights to the remaining prisoners. They cannot be tried in regular US courts, because they are not alleged to have violated US laws. But the government could be required to prove before a special tribunal that each prisoner poses a continuing threat. The prisoner should be able to rebut that claim. Furthermore, those who are held as potential threats should not be otherwise deliberately punished. They should be detained in reasonably comfortable settings.

I am aware that the US Government resists trying those Guantanamo prisoners who are believed to have committed actual crimes, because trials can disclose secret information. But this is where I think we should dig in our heels and say that the need for due process is more important than secrecy, even in a “war.” If the basis for holding someone is a criminal allegation, then the prisoner should get a fair and speedy trial. Otherwise, everyone’s rights are threatened.

Last week in Burgundy, we noticed that every single town had erected a stone cross with the names of its dead from 1914-18 and 1939-45. Even a village of 50 people (according to our Michelin guide) might list a half dozen killed. A few names were marked ?d?port?taken east to die in slave labor or death camps. Overall, France lost 1,368,000 men in the First World War and 563,000 people (civilians and combatants) in the Second. That counts only the dead, not those grievously wounded, psychologically broken, widowed, orphaned, or deprived of young sons. France lost 11 percent of its entire population in the Great War, compared to a death rate of 0.37% in the United States. Even in World War II, the French lost twice as many people as we did, out of a much smaller population.

And then I think of the people, my fellow Americans, who claimed that France opposed our invasion of Iraq because they lacked the courage for war; the French were ?surrender monkeys,? in the phrase that certain hawks borrowed from ?The Simpsons.? These people remind me of the ones Siegfried Sassoon described in ?Base Details?:

IF I were fierce, and bald, and short of breath,

I?d live with scarlet Majors at the Base,

And speed glum heroes up the line to death.

You?d see me with my puffy petulant face,

Guzzling and gulping in the best hotel,

Reading the Roll of Honour. ?Poor young chap,?

I?d say??I used to know his father well;

Yes, we?ve lost heavily in this last scrap.?

And when the war is done and youth stone dead,

I?d toddle safely home and die?in bed.

Bill Galston is my boss (and friend). Therefore, I got a big kick out of Kenneth Pollack’s article in The New Republic, entitled, “Mourning After: My Debate with Bill Galston.” It begins thus:

Bill Galston is one helluva debater. In the fall of 2002, well before the invasion of Iraq, I faced Bill–a University of Maryland professor and a former colleague of mine in the Clinton administration–in a public debate, and he kicked my rhetorical ass. He did it by holding up a copy of my book, The Threatening Storm, and saying to the audience, “If we were going to get Ken Pollack’s war, I could be persuaded to support it. But we are not going to get Ken Pollack’s war; we are going to get George Bush’s war, and that is a war I will not support.” Bill’s words haunted me throughout the run-up to the invasion. Several months ago, I sent him a note conceding that he had been right.

A reliable friend gave me a professionally printed document entitled “The Law of Home Rule of the City of Baghdad: Enacted by the Baghdad City Council on Behalf of the Citizens of the City of Baghdad” (Draft, June 2, 2004. Adopted: ______ 2004). I cannot find this document with a Google search, but it looks genuine, and it’s interesting on several levels.

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