Jay: fantastic debut. I couldn't agree more. As someone who did vote for Bush but now regrets that vote, this is one of my major problems with Bush and his view of the WOT. It should be a national embarrassment that we have held terrorists at Guantanamo without pursuing justice whatsoever. How is it American for our government to just disappear people? This is a horrific precedent that conservatives of all people should understand.

Kevin Drum has a pretty good take on this as well:

"The fact is that the whole issue of enemy combatants in an age of transnational terrorism is a really difficult one. This isn't a conventional war where we can just release prisoners after it's over, nor is it like domestic crime, where the state has the power to coercively collect evidence and demand testimony. It's a helluva hard problem, and under normal circumstances we'd all be well advised to cut the administration some slack as they try to figure out how to deal with it.

And we might, if it weren't for what this administration has done. But the combination of torture and "coercive interrogation," including rendition of high-value prisoners; widespread imprisonment based on evidence the Pentagon knows to be blatantly fabricated; and the adminstration's almost fanatical resistance to even minimal standards of review, has convinced even sympathetic observers that the Bush administration isn't struggling to find a solution to a hard problem. They just want to keep people locked up forever — unless it happens to be politically inconvenient, of course. Is it any wonder virtually no one trusts us on this subject any longer?"

Hello Jay,

I like Glenn Greenwald, but he is a bit myopic on this one. To say 'that is the modern republican party' when describing imprisonment without charges is to imply that repulicans are at fault for this pernicious policy, and that democrtats are somehow different. Greenwald is wrong on both counts. The policy crosses party lines and flows from the notion that we need to be protected from bad guys out there. Where were democrats over the last five years, when Jose Padilla was locked up without charges in a military brig? To speak out is to be labeled 'soft' on the war on terror, something democrats are fearful of. And if memory serves, there is at least one other US citizen being held without charges here in the US, although his name escapes me. Many democrats (i.e presidential candidates) have not spoken out against this policy or denounced it, so it is speculative for Greenwald to suggest that democrats would be against it. (I think John Kerry would be far better than Bush, but go back and read Kerry's pre-election comments on Iraq, the war on terror, etc. and try and distinguish that from Bush. Not much difference at least in rhetoric.)

Then there is the 'institutional bias.' What presidential candidate seeks to portray the office as limited in power? Some are better than others at masking the power claimed by the executive branch, and will offer statements like 'as president, I will use all lawful means to keep Americans safe from terror' but rarely, if ever, will a candidate say anything that could be construed as a weakness by a political opponent. Being 'soft on terror' is considered a weakness, and a given candidates fear of being labeled soft allows this mindset to take root in our views of what is acceptable.

Since the Magna Carta, the power of the executive to lock up a citizen without charge has been expressly forbidden. We now willingly give it away. That truly is something every American should be concerned about. The 'answer' however does not lie with one particular political party, as Greenwald suggests, but with the American people taking a stand. We need to give our leaders a reason to take 'take the lead.'

I do like Greenwald's quote from Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgement by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian governments whether Nazi or Communist.

Lastly, as a side note, Greenwald is engaging in wishful thinking if he thinks Scalia sided with John Paul Stevens in substance. Scalia's opinion is formalistic: Congress has the right to suspend habeas, Congress did not suspend habeas, therefore, the detention without charge is unconstitutional. Scalia's opinion (along with O'Connor's) was a blueprint for the MTCA, and a delegation by congress to the executive branch to make the determination. The real test will be when Scalia sees nothing wrong with the delegation.