Peter Wehner has a long response to my criticism. Some responses in turn. Pete concedes that the administration originally seized far, far more detainees than it could prove guilty (or ever tried to prove guilty) and has released thousands falsely imprisoned. Of the thousands seized, Pete concedes many were abused and tortured, with over a hundred deaths occurring during interrogation, two score of whom the administration has itself conceded were murder-by-interrogation. All this occurred after the president decided his actions as commander-in-chief could not be constrained by the law, after he had waived the baseline Geneva Convention protections for prisoners in wartime - in violation of the policy of every previous president of the United States from Washington on - and after critical memos were signed allowing American interrogators to do anything to prisoners short of death or loss of a major organ. Larry Wilkerson, Colin Powell's former chief of staff explains what this means in terms any morally responsible person would understand:
As I compiled my dossier for Secretary Powell, as I did further research, and as my views grew firmer and firmer, I needed frequently to reread that memo. I needed to balance, in my own mind, the overwhelming evidence that my own government had sanctioned abuse and torture which, at its worst, had led to the murder of 25 detainees in a total of at least a 100 detainee deaths. Death, Mr. Chairman, seems to me to be the ultimate torture, indisputable and final. We had murdered 25 or more people in detention; that was the clear low point of the evidence.
And all this was done not in the chaos of a battlefield or even by rogue units or POW camps. It was not done in a war with anything like as many soldiers and battles as World War II. It was done in a closely managed war by a professional military and intelligence service in every theater of combat as a concerted policy to get more intelligence about Jihadist terror and the Iraq insurgency. It was authorized directly in the chain of command by the president, who knowingly broke the law and hired lawyers to tell him he hadn't. No clever argumentation that "only" 270 prisoners remain at Gitmo can gainsay that. And it is not, by the way, evidence against the fact that this administration seized countless innocents and tortured them to say that they eventually released most of them. It is no consolation to the torture victims at Abu Ghraib that they were eventually set free and their innocence confirmed. Those are the standards of benign dictatorships, not democracies.
Now, you could argue that the administration, after initial understandable over-reach, has tried to set things right. But you would be wrong.
They still refuse to take responsibility for torture and abuse and murder on their watch; and the CSRTs they eventually came up with have been revealed as kangaroo courts in which acquittals are deemed out of bounds and in which countless military lawyers have cried foul. It would be great if we had had a chance to set up clear guidelines in advance, with Congressional support, to give prisoners Geneva protections and non-habeas but robust military trials in what is, as everyone concedes, a very challenging conflict. But this president decided against that, to ignore the advice from the professionals and from the military lawyers, and to do it his own way, with appalling results. Once this record has been compiled and the indecency of Bush's "new kind of war" revealed, it seems to me that no Supreme Court that gives a damn about the Constitution or the ancient traditions of Anglo-American justice or humane warfare would give the benefit of the doubt to a president like this one. Not if the word "court" and "justice" are to be deemed within the same universe.