If, as he so often points out, President Bush is a post-9/11 president, what the country sorely needs in 2009 is a post-post-9/11 president. That would be a chief executive who understands what Bush has not: The war on global jihadism is too important to be run as a permanent military emergency. It needs a sustainable, legislated legal architecture.
As Corine Hegland's cover story in this issue makes vividly clear, Guantanamo is just the beginning. For years to come, the United States is going to be hunting and capturing jihadist operatives on insurgent fronts around the world. Some of these people will be too dangerous to release but cannot be charged as ordinary criminals. What to do with them is the country's most urgent legal question.
Between now and next year's election, there is an approximately 3.27 percent chance that Bush and the Democratic Congress will join forces to resolve this problem, which leaves an approximately 96.73 percent chance that the next president will inherit it. So what do the presidential candidates propose to do about preventive detention?
My colleague Alexander Burns queried all of the announced candidates. Three, all Republicans, did not respond: Sen. Sam Brownback of Kansas, former Massachusetts Gov. Mitt Romney, and Rep. Tom Tancredo of Colorado. Most of the others gave vague or incomplete responses, often raising more questions than they answered.
Still, with a generous dollop of reasonable inference, I managed to sort the candidates' positions into four broad schools. Call them maximalist, minimalist, judicialist, and restrictionist.
Maximalists think that President Bush basically has it right. They believe that the president can use his military authority to detain terrorist suspects with little judicial or congressional oversight. Former Wisconsin Gov. Tommy Thompson, a Republican, seems to be in this camp, although conditionally: According to a spokesman, he favors holding detainees "as long as the United States sees them as a credible threat," but under streamlined review procedures.
Ed Crane, president of the libertarian Cato Institute, reports asking former New York City Mayor Rudy Giuliani whether the president has the power to arrest U.S. citizens on U.S. soil and hold them without court review. According to Crane, Giuliani replied that he would want to use this authority infrequently—implying that the president has such authority to use.
Asked about Crane's account of her boss's view, a Giuliani spokeswoman said, "That sounds about right." Requests for elaboration met with no response.
Crane says he asked Romney the same question at a meeting of the Club for Growth, a conservative group. Romney, reports NationalReview.com blogger Ramesh Ponnuru, told Crane "he would want to hear the pros and cons from smart lawyers before he made up his mind," an account that Crane confirms. Romney has also said publicly that the Guantanamo Bay detention facility should be doubled in size because inmates "don't get the access to lawyers that they get when they're on our soil." His campaign did not respond to requests for comment, but Romney at least sounds like a maximalist—albeit one who has not given a moment's serious thought to the most important legal question of the day.
That the maximalist position should be cavalierly propounded and thinly defended is not surprising, because the position is cavalier and indefensible. The notion that the chief executive can clap anyone in prison forever with only nominal court review was one the Founders had something to say about, in a document called the Declaration of Independence. In any case, maximalism has already crumbled in court.
Minimalists oppose long-term preventive detention. They believe that if the government cannot file criminal charges, detainees should be released or deported. Former Democratic Sen. John Edwards of North Carolina seems to be in this camp, saying (according to a spokeswoman) that Guantanamo detainees should be tried either in the civilian judicial system or in military courts under the Uniform Code of Military Justice. A spokesman for former Democratic Sen. Mike Gravel of Alaska agreed with a recent court decision holding that a detainee must be tried in civilian court or released. Liberal Rep. Dennis Kucinich, D-Ohio, and libertarian Rep. Ron Paul, R-Texas, likewise oppose preventive detention.