“Show trials”? Not so much.

A prisoner of war has rights that a convicted criminal (e.g., a terrorist) doesn’t. He’s entitled to much more civilized conditions of confinement. So the fact that a war-crimes acquittal doesn’t lead to the release of the detainee doesn’t make that war-crimes trial a “show trial.”

When Glenn Greenwald and Pejman Yousefzadeh agree on something, it’s a safe bet that (1) they’re both wrong and (2) they’re both blinded by their insensate loathing of Barack Obama.

Right now, they agree that the Obama Administration’s claim that some enemy fighters can be detained even if they are not charged with, or are acquitted of, war-crimes charges means that any war-crimes trials will be “show trials.”


So irrespective of the outcome of a trial, the defendant will remain in prison, and that will mean that many of those trials are going to have no effect whatsoever on the lives of the defendants in question. And that means that the Obama Administration’s guarantee of a fair trial or due process for these defendants is utterly meaningless.


Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee.

Well, actually, no. And again, no.

1. Both convicted criminals and prisoners of war are locked up. There the similarity ends. Convicted criminals are being punished. They can lawfully be subjected to hard labor. They can lawfully be interrogated. Prisoners of war are being detained. They cannot be required to work or to give information beyond name, rank, and serial number. Convicted terrorists do very hard time in very hard places, such as the “supermax” in Florence, Colorado. In my opinion, conditions there are violations of the Eight Amendment and may constitute crimes against humanity, but my opinion is not shared by the courts. It would be a gross violation of the laws of war to confine a PoW in anything resembling those conditions.

“Absolutely no difference?” I don’t think so.

2. Someone can be innocent of terroristic acts or of war crimes and yet be an enemy combatant. Indeed, most PoWs fit into that category. So it’s unusually mendacious, even for Greenwald, to claim that the Administration is discussing “imprisoning people based on accusations of which they have been exonerated.”

Now, if someone were determined at a status hearing not to have been an enemy combatant, and the Administration insisted on the right to hold that person anyway (for example because that person had joined a terrorist group while in confinement) I would be outraged. But that doesn’t seem to be the case.

Greenwald and Yousefzadeh also agree that Obama is continuing Bush-Cheney policies, ignoring the difference between, for example, being tortured and not being tortured.

Yousefzadeh is at least pursuing a comprehensible partisan and factional program: he can’t stand liberals or Democrats, and he’s doing his dishonest best to tear down a liberal Democratic President.

Greenwald, on the other hand, seems to be addicted to hating Presidents. He really loved hating Bush, did his best to defeat Obama so he could have McCain to hate, and now seems to feel that his live would be over if he admitted that the President with the most progressive agenda since the Great Society was anything but consummately hateful.

Update: Andrew Sullivan writes:

if these detainees are prisoners of war, they should surely be given full prisoner of war status. And their detention should be tied to how long the wars in Afghanistan and Iraq last, not to the Global War On Terror, which was designed to be never-ending.

I entirely agree. We’re at war with al-Qaeda and the Taliban; there is no fighting force called Terror, so we can’t be at war with Terror. When and if our fights with those specific organizations end, so should the captivity of their members. And the logic of treating captives as combatants rather than criminals dictates that they be given Prisoner of War treatment.

If there’s any evidence that the Obama Administration believes otherwise or is acting otherwise, I’ll be happy to join in the criticism. As far as I know, there isn’t, and in the absence of such evidence I don’t see any reason to attribute the mendacity and brutality of the Bush Administration to the Obama Administration.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com