No Faith in the Last 228 Years?

Slate's blog on legal issues.
June 11 2008 2:06 PM

No Faith in the Last 228 Years?

In seeking to defend the call for a novel means to prosecute persons suspected of terrorism , Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
One need look no further than the Diplock system, invented by our legal progenitor, Britain, to raise immediate questions about the assertion that such tribunals can be legitimate. And as Deborah notes, it's a wonder why more don't look to "the good old-fashioned court-martial ."
As for "administrative detention apparatus," can it be that this is the inevitable fallback? There are doubtless others. As I write in conclusion of Punish or Surveil , in which I measure military commissions against federal criminal courts and ordinary courts-martial, traditionally individuals whom government deems but cannot prove to be a threat were handled outside the criminal justice system, through surveillance . Even today, even with the high detention rates at places like Bagram, this is how most such persons are handled. And even were novel tribunals to be adopted, this would remain the case.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?



The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

A Plentiful, Renewable Resource That America Keeps Overlooking

Animal manure.

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10


Cringing. Ducking. Mumbling.

How GOP candidates react whenever someone brings up reproductive rights or gay marriage.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Hasbro Is Cracking Down on Scrabble Players Who Turn Its Official Word List Into Popular Apps

The Ludicrous Claims You’ll Hear at This Company’s “Egg Freezing Parties”

  News & Politics
Sept. 30 2014 9:33 PM Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
Oct. 1 2014 8:34 AM Going Private To undertake a massively ambitious energy project, you don’t need the government anymore.
The Eye
Oct. 1 2014 9:26 AM These Lego Masterpieces Capture the Fear and Humor of the “Dark” Side
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
Brow Beat
Oct. 1 2014 8:46 AM The Vintage eBay Find I Wore to My Sentencing
Future Tense
Sept. 30 2014 7:00 PM There’s Going to Be a Live-Action Tetris Movie for Some Reason
  Health & Science
Bad Astronomy
Oct. 1 2014 7:30 AM Say Hello to Our Quasi-Moon, 2014 OL339
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.