I have written previously about how the administration will be more concerned with covering its tracks than anything else in its final months, and recently the pace has picked up. Maybe the passage of the new FISA bill kicked it off in the same way Memorial Day informally starts summer in America (and Labor Day ends it - you can keep all your fancy solstices and equinoxes). Whatever the cause though, the effort is underway to run out the clock, cloud the law and excuse the guilty. A key leader is Michael Mukasey. He has already shown a willingness to be a demagogue on terrorism and an apologist for torture. Now he wants Congress to ignore the Boumediene decision with a leap of logic that would - literally - create the permanent environment of a police state:
[A]ny legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.
This is a classic administration attempt to take a narrow need and expand it to contain whole new worlds of authority. (Remember, the only fix needed for FISA was a law allowing warrantless surveillance for foreign-to-foreign communication that passed through American infrastructure.) What is needed is for the military in Afghanistan and Iraq to operate prisoner of war camps. Even this is a little bit slippery because there will not be a Missouri or Appomattox moment in these wars, but eventually our soldiers will stop serving in combat roles. At that point we will have reached the closest we will get to a definitive conclusion. With that as a rough guide we could target a final disposition for all enemy combatants.
That isn't what Mukasey wants, though. He wants anyone "dedicated to the slaughter of Americans-soldiers and civilians alike" to be the target, not those who are actively fighting us (the possession of such dedication would presumably be determined by enlightened souls such as...Michael Mukasey). He wants to set up a system where an unknowable quantity, like bad intent, is the standard for detaining people. The fact that the administration has been doing so and has suffered four consecutive reversals by the Supreme Court does not seem to trouble him. What he really wants is for Congress to give legal cover for the executive branch's illegal detention system.
Equally disturbing is the duration of this alternate justice system. The effective suspension of habeas corpus will be "for the duration of the conflict" which the administration prefers to mean "as long as anyone in the world wants to do America harm." In other words, permanently. The actual scope of what we are (or should be) doing from a military perspective is very limited: Having soldiers capture or kill the remnants of al Qaeda and their Taliban sponsors somewhere in the remote regions of Afghanistan (and maybe the Pakistan border too)? We could probably limit it even more--the Taliban have been routed from power and al Qaeda no longer has training camps from which to plan new attacks. We could just keep watching the area, keep them on the run and disrupt any attempts to settle down and organize. The formal military campaign against the people who attacked us has been over since December 2001.
What is left is tracking those who survived the campaign in those areas and law enforcement efforts elsewhere. John Kerry was derided for making that suggestion in 2004 but he was right. Even formerly reliable allies of the President have begun to concede this obvious point. The bulk of our efforts should focus on intelligence gathering (a substantial part of which can be accomplished by activities as prosaic as reading local newspapers), identifying cells of activity in both friendly and hostile countries, and finding ways to disrupt them. (One more obvious point: Identifying and detaining potential terrorists is easier when the country they operate in has a favorable impression of us.) It is a serious threat but not an existential one, and anyone looking to characterize it as such--as an endless war with no well defined enemy or articulation of victory--may fairly be suspected of ulterior motives. The effort did not require the erosion of civil liberties that have already happened, and our ongoing efforts against those who would do us harm do not require further concessions to extremists like Mukasey.
