During the battle of Agincourt in 1415, Henry the fifth of England held 40,000 French soldiers prisoner. The French prisoners far outnumbered Henry's own soldiers. He couldn't guard them; he couldn't release them; he had a problem. There is dispute about order of events, but, as I understand it, the end result was that Henry killed them all and went on to win the battle. Clearly Henry's solution is as unacceptable to us today as torture is.
What does this have to do with Obama, Maddow and Turley? See below.
While no one, not even Cheney, would consider murdering the detainees at Quantamo in cold blood, Henry's dilemma does shed some light on Obama's dilemma. There is a distinction here that is sometimes lost. When one is accused of a crime, he or she has the right to due process. The act of imprisoning is an act of retribution by the state for a bad act a person. When someone is captured in battle, there is no allegation of a bad act. That person is simple a soldier, doing his or her duty for another country. That person can be held prisoner, but is not entitled to the same due process as someone accused of a crime. He or she is entitled to visits from the Red Cross or Red Crescent, humane treatment, etc. But he or she is not entitled to trial, because no crime is alleged. And they are not entitled to release until the war is over.
The problem is that the war on terror is not like a war on a country. It may never be over. That is why for those prisoners, Obama correctly said we cannot release them, and we should develop a framework for holding them and include not just the executive, but the legislative and judicial branch in the discussion.
This is a new problem. If some of those we have in custody have not committed crimes, like being involved in terrorism, but nonetheless have sworn allegiance to an entity that is our sworn enemy, then what do we do? These soldiers are analogous to German prisoners of war in in world war II.
On the other hand, the war is not like WWII. It will not be over in four years, there will not be a Marshall plan. As things change over time, novel situations arise, in war as in all other theaters of human activity. And we need the best brains to come up with solutions. For better or worse, the people possessing those brains may be in the executive, legislative and judicial branches of government. If they are not the best brains, they are at least the elected officials.
Maddow and Turley say that this is opening a new category of prisoners, which it is. And that if we can't prove that these people have committed crimes they must be, presumably, deported. I disagree. They can be held under humane conditions until the hostilities are over like any other prisoners of war.
That's my opinion anyway, and I'm sticking to it.