This is one of those questions that’s a very tough nut to crack. Critics of the Bush administration cite numerous cases of people (typically men) who wound up in Guantanamo without trial and turned out not to be terrorists, victims of mistaken identity or some other mistake. On the other hand, there are people incarcerated there (and in other prisons) who are dangerous, and some of those prisoners who’ve been released from Guantanamo wound up as suicide bombers in Iraq. Some would point out that the prison might have made them into terrorists, when they wouldn’t have otherwise been peaceful. Not every suicide bomber was in Guantanamo, though.

There’s a larger issue, though. In the past, wars were fought between nations. Armies fought and captured prisoners from their enemies, and in many cases exchanged those they captured with each other. Typically, at the end of the war the prisoners were released and repatriated home to help rebuild their countries. Those who fought on behalf of a non-national entity, or as part of an organization which wasn’t really an organized army, were executed summarily. Up through the end of the Second World War, all nations killed such people without thinking about it much. All they got was what was called a “drumhead court-martial”, so called because in earlier times a drum was used by the ersatz judge as a desk.

Now, everything has changed. Our wars aren’t against nations any more. The individuals we fight (I refuse to call them soldiers, and was periodically dismayed by Rumsfeld’s ruminations as to what they should be called) aren’t part of any organized military grouping. We can’t invade their country and overrun it because it doesn’t exist. As a result, there’s nowhere to send these people. The countries from which they originated don’t want them back, because they’re violent terrorists. If they were captured on the battlefield, somewhere in Afghanistan or elsewhere, we probably don’t have any evidence that they were doing anything violent or wrong. This leaves us with two difficulties: 1) What do we do with those we have incarcerated now? and 2) What do we do in the future?

Question 1 is rather obvious. We’re going to have to let some of these individuals go, and we’re probably going to hear about them in the future. I hope it’s not the case. I’d really prefer it if Justice Scalia was wrong (I suspect he’d like to be wrong himself, but fears he’s correct) but I’m with him: we’re going to feel this and it’s going to be painful. The second question is murkier. How, in the future, do we fight the individuals that are opposing us, in Afghanistan and Iraq. When we catch a Taliban type in Afghanistan, apparently we are going to have to provide evidence and testimony as if he was a criminal whose been arrested in Des Moines or someplace. One has a vision of 5,000 US Army Rangers landing somewhere, followed by 15,000 lawyers, 15,000 crime scene investigators, and 3,000 or so military judges. The idea is of course silly, and I can’t imagine this is going to work very well for very long. Things are going to be ignored, or alternatively, changed.

You have to wonder about judges like this. I’m all in favor of judicial integrity and don’t think they should be influenced or accessible to the population, because they need to be separate to make judgments free from the vagaries of popular culture and the transitory fads of the current generation. That being said, there’s also something to the idea that these people should have some experience of the world outside, and have some stake in how things work out. I for one am not willing to sacrifice lives for a principle, especially given how many people we lost the last time we were stupid.