There has been much kerfluffle in recent months about the details of a rumored inside-the-Beltway legislative deal under which, it is said, President Obama will agree to the trials of certain alleged terrorists before military commissions in exchange for, among other things, additional rights for the defendants.
The negotiators on both sides are acting irresponsibly by choosing to ignore for short-term political reasons the elephant in the room.
At all costs the public must not be aware of a single fact: there is no realistic chance that any convictions returned by military commissions will ultimately be upheld by the Supreme Court. And if the putative legislation includes a scheme of preventative detention for those who "can't be tried but are too dangerous to release," that provision too is a strong candidate for invalidation.
The reason has nothing to do with whatever procedural details the bill might contain and everything to do with a core protection of liberty: There is a profound Constitutional difference between "the authorized use of military force" and "a war."
American military forces can be, and have been, deployed against a wide range of adversaries from pirates to slave traders. Examples include the Whiskey Rebellion, in which George Washington in person led the initial march, unions involved in railway strikes, and drug cartels. Some of those examples involved the deployment of forces overseas and in some instances it was necessary to look to international law to decide who could be targeted.
But none of those uses of force was "a war" under the Constitution, even if the adversaries had ties to foreign governments, even if they had engaged in massive acts of horrific violence for political reasons, and even if our military action was legitimate under international standards.
In order for there to be "a war" the adversary must be an actual or nascent nation-state, that is, an entity capable of entering into a treaty to end the hostilities. Examples include the Confederate States of America and the Barbary States (with whom we entered into treaties despite earlier political denunciations of their corsairs as "pirates") and the former government of Afghanistan, which the United States defeated in a war in 2001.
The elementary reasons for this limitation are that "war" was so understood at the time the Constitution was ratified and that, as a practical matter, a "war" will end with an exchange of prisoners.
But there is a much deeper reason. The framers were intensely worried about abuses of military power. During a war, members of the enemy force may be tried by military commissions for war crimes, enemy captives may be held without charges until the end of the conflict, and civilians can be brought before military tribunals in areas where the civil courts cannot function.
In contrast when the military uses force in other situations, captured prisoners, regardless of their citizenship, must be brought to a criminal trial before civilian courts. The Constitution mandates that this situation be the norm -- whether the evildoers be denominated "pirates" or "terrorists." (And for this reason, the courts have generations of successful experience in dealing with such issues as use of the courtroom as a political forum, protection of classified information, and the applicability of the Bill of Rights abroad).
The alleged pirate our Navy captured off the coast of Somalia is facing a criminal prosecution, not a military tribunal. The battle against terrorism is not "a different kind of war." Under the Constitution it is not "a war" -- which is precisely why all attempts to make it one have proved to be exercises in trying to fit a round peg into a square hole.
The Constitution deliberately makes a "war" a relatively rare occurrence so as to minimize the number of instances in which the Executive may dispense with any demonstration of wrongdoing on the part of its prisoners and keep them locked up by simply showing them to have been part of the group targeted by the military.
Because such detentions are an incident of war, not of the use of force, the administration's long-run litigation prospects are nil. The same is true of its assertion of the power to try alleged terrorists before military commissions.
But constitutional law is written in the pages of history as well as in the Supreme Court reports. Regardless of what judicial opinion might eventually be delivered President Obama's failure to marginalize the claims of the Bush administration as the radical assertions they were will have serious long-run costs. If fundamental matters of constitutional law become mere policy differences that change with control of the White House, then a President Sarah Palin will be free to re-write the rules for military commissions and James Madison's Constitution will have been replaced by Dick Cheney's.
As centuries of experience in times far more dangerous than these have shown, the difference between a government that acts on what it "knows" and a government that is required to prove its charges in adversary proceedings before an open and neutral tribunal is the difference between a government of laws and a police state.
America's greatest strength is not military but consists in the moral force that comes from being an example to the world. A country that others justifiably want to emulate, one confident enough in its own values that it adheres to them in times of stress, is a country that will win the hearts and minds of people around the world and one that rightly will ultimately prevail in global ideological struggles.
If he loses sight of that enduring reality in pursuit of some perceived short-term advantage President Obama's legacy will be both a rule of law more imperiled on his last day in office than it was on his first -- and a weaker nation.
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