To be clear, Bush’s combatant status review tribunals (CSRTs) produced some convictions on his watch — but very few with any degree of permanence, and even less with any degree of reliability. Following Boumediene v. Bush, 553 U.S. 723 (2008), the landmark Supreme Court decision holding that the executive can’t consign detainees to a legal black hole on ipse dixit alone, several detainees have sought and won their freedom in parallel habeas corpus proceedings. Some in decisions brutally critical of the government’s reasoning, or lack thereof. See, e.g., Parhat v. Gates, 532 F.3d 834 (D.C. Cir. June 20, 2008) (“Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true.”). Only a spate of much-delayed releases (“Sorry for taking three years of your life — oh, and the torture. Good luck now!”) saves the Bush administration’s prosecution history from the truly abysmal win/loss rate it deserves.
In the same time, following Obama’s (quasi) law enforcement paradigm, the President has won every high profile case to occur on his watch — all of them by guilty plea (e.g.), all of them fast, and in every case despite the inexplicable distrust of the American right, and his opponents’ naked attempts to politicize the rule of law. This should prove one thing: although the choice between freedom an security is a hard debate for our side to win, it’s also one we don’t need to have. We don’t need to surrender our values to put bad guys behind bars. Someone cut a campaign ad, and let Liz Cheney try to explain it away. The right’s monopoly on counterterrorism is over — and in truth it never should’ve begun.