I respectfully offer a caution against a problem that is endemic to legal discussion: Events are unfolding faster than the terms and dynamics embodied in the cases under discussion. This leads to a gap between what the dicussers are discussing and what the reader knows about events out beyond the courtroom, and the gap is now growing so wide as to threaten to weaken with the discussers’ credibility. We do not want to look like a court of ancient Chinese mandarins trying to define and determine the attributes of the unicorn.

Thus, specifically: Are we sure that ‘war’ as the Framer’s conceived it is really the appropriate term for the type of preventive, invasive, falsely-predicated aggression that has been perpetrated in and against Iraq? Surely, claiming that the Geneva Conventions are only somewhat or marginally relevant to the detention and treatment of ‘prisoners’ of the present ‘war’ (because they have violated the laws of war in the first place) is off the mark: a) they are hardly POWs as conceived by the Conventions and are more clearly ‘civilians’; b) since we are now an occupation force in their country (and recent developments indicate we propose to stay in that position for quite some time, while also strong-arming quasi-monopolistic deals for our oil corporations) then we must also distinguish between a member of a ‘Resistance’ and a ‘terrorist’; indeed this ‘terrorist’ label is proving more elastic than our unhappy domestic ‘sex offender’ label; and while we have been able to escape the consequences of such gross terminological imprecision on our home field, the consequences – however convenient to us in the short-term – have proven impossible to avoid or escape on the ‘away’ field; c) this is a ‘novel war’ precisely because it is not a war, just as a unicorn with no horn and a dark-colored coat is not a ‘novel’ unicorn but is a horse, far less fantastical but possessed of a far more palpable kick.

Additionally, determining whether detainees already held are ‘terrorists’ has now become a vastly more complicated matter. As discussed, there is a question of whether someone detained was originally a terrorist by act and intention. But what to call someone who, having enjoyed the privilege of years worth of isolation and abuse at the hands of our military, is – whatever his original attitude – now very ill-disposed toward us simply because of what he’s gone through? He may indeed constitute some danger to us simply on the basis of his anger at his treatment during incarceration; but is he a ‘terrorist’? He may not want to see his country permanently colonized (cf. the SOF Agreement proposed by the Administration to the Iraqis) by a foreign invader and has now made up his mind to Resist; is he a ‘terrorist’?

And if the latter two categories of individual are not actually ‘terrorists’, but are angry victims of military zeal or Resistance-minded nationals of an occupied country, do we really want to go down the road of keeping them imprisoned? The Beltway habit of categorizing everyone who resists our plans as a ‘terrorist’ is a self-serving illusory short-cut that has served neither the military nor the government well; the extent of the damage is invisible only to us here in the US, thanks to a too-passive media. Allowing our legal discourse to be suborned by that same chimera seems not the way to go.

Lastly, while it is disturbingly true that our legal system’s error rate is not zero, and our tolerance for convicting the innocent is not zero, yet I do not see the wisdom of taking this dark and profoundly unhappy consequence of human imperfection and erecting it into a Plan.