High-Value Detainees and High Crimes

I’ve steered clear of the debate around Bush Administration handling of detainees. Andrew Sullivan’s Daily Dish/Atlantic blog does a very good job of chronicling and carrying the flag. No actions by our government have ever upset me as much. I have little perspective and less tolerance; as a result, I’ve come to appreciate Obama’s approach. He’s got too much to do with economies and wars; best to drive looking out the windshield, not the rearview mirror.

That said, Philip Zelikow’s piece on Shadow Government (Foreign Policy) is insight from an insider. It deserves more attention.

Despite Zelikow’s nuanced read of the Bush approach:

The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for “cruel, inhuman, and degrading” you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Thanks to reader ASR.

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