My Knee-Jerk Liberalism

I am quoting heavily rather than just linking to this article in TNR because their articles cannot be read for free, but if you want to read the whole thing it is here. I know the discussion of Guantanamo has gone on and on, but this article seems to be one of the most well written I have read on the subject and I thought some of the information should be shared since this is an issue I feel very strongly on.

The Bush administration has adopted this radical approach because it is defending the idea that the Constitution empowers the president to conduct war exclusively on his terms. A series of memos written by the Justice Department's Office of Legal Counsel in 2002 effectively maintained that any law restricting the president's commander-in-chief authority is presumptively unconstitutional. (When GOP Senator Lindsey Graham recently quoted to Pentagon lawyer Daniel Dell'Orto the inconvenient section of Article I, Section 8, granting Congress the authority to "make rules concerning captures on land and water," he farcically replied, "I'd have to take a look at that particular constitutional provision.") Last month, when some GOP senators tried to bar "cruel, inhuman, or degrading treatment" of detainees in an amendment to the 2006 defense bill, the White House sent them a letter threatening to veto any attempt to "restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice," and Vice President Dick Cheney warned senators against usurping executive power. For good measure, the White House instructed the Senate leadership to pull the entire half-trillion-dollar bill from the floor, lest the offending language within it pass.

...

Solicitor General Paul Clement, arguing for the continued detention without charge of American citizen and suspected Al Qaeda terrorist José Padilla, explained what the administration has in mind for its "flexible" definition. Federal appellate Judge J. Michael Luttig, a Bush appointee, noted that, since Padilla was arrested not on an Afghan battlefield but at a Chicago airport, the administration's discretion to detain an American citizen ought to be fettered, "unless you're prepared to boldly say the United States is a battlefield in the war on terror." Clement immediately replied, "I can say that, and I can say it boldly." In essence, the administration is claiming authority to detain anyone, captured anywhere, based not on any criteria enacted by law but rather at the discretion of policy, and to hold that individual indefinitely.

I have now edited this a little , but you can still get the basic point.