In the movie Grand Canyon, Danny Glover has been forced to show a gang leader "respect" by asking "permission" to go about his business, prompting the gang leader to ask "Do you respect me, or do you respect my gun?" Glover looks him in the eye and says, "You don't have that gun, there's no way we're having this conversation."
So it is with discussions about the law of "enhanced interrogation techniques" or whether "unlawful combatants" have rights. They are only discussions that take place at the point of a gun. It’s not about law; it’s only about guns.
We know what to do with people who have committed crimes under U. S. law or war crimes under international law: We try them in our courts or military tribunals and detain them for a prescribed period. But what do we do with people who haven’t done anything wrong yet, or we can’t prove they did, or have already served their sentence, but are nevertheless too dangerous to release? Well, first we have to decide whether we are holding them because they are dangerous or just because we are afraid of them. We have to decide that because we can build a rational legal system around the objective concept of "dangerous." Law built on subjective fear is only the law of the gun.
Start with a rational concept that it’s possible to submit the question of "too dangerous to release" to a fair tribunal. Apply it only to people captured during armed international conflict or war, broadly defined. Apply it only where there is objective evidence to rationally conclude that the detainee is likely to engage in hostilities against us. Give him the right to counsel, a fair proceeding, the right to challenge the legality of the tribunal’s decision to detain him through habeas corpus or appeal. Give him periodic review of his status and the opportunity to demonstrate, under a tough standard, that he can now safely be released. Treat him with dignity, preserve his health, and protect him from harm. And when the tribunal says it’s time to release him, release him, deport him, accept it. Be bound by the law no matter how afraid we still are. Have faith that no reasonable court or military tribunal is going to release the "worst of the worst."
That’s what "Land of the Free and Home of the Brave" means to me.