Guantanamo, the Supreme Court, and the rule of law
Cross-posted to Random Fate.
—
The Wall Street Journal (posted online at OpinionJournal.com) betrays a fundamental misunderstanding of the concept of the rule of law in an editorial on the recent ruling by the Supreme Court on the applicability of part of the Geneva Conventions to the prisoners held at Guantanamo Bay by the United States.
In the editorial Osama in Genevaland (subtitled Terrorists are now getting lawful-combatant legitimacy) they write:
The Geneva Conventions of 1949 govern the treatment of lawful combatants and civilians during wartime. But now a new Pentagon memorandum concludes that Common Article 3 of the Conventions also governs the treatment of unlawful combatants: pirates, drug mafias and especially terrorists. So, five years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI.
This hyperbole makes the unstated assumption that everyone held by the United States as an “unlawful combatant” is indeed merting of that designation, despite the fact that there has been no process put in place to establish that status for prisoners. Through what means was it decided these people are “unlawful combatants” and who made that determination? Was it fair? Was it based on evidence, or merely hearsay?
This does not even address the basic flaw in the subtitle regarding giving legitimacy to terrorists, because we have already done so in our reaction to the murders of September 11, creating an inflated “War on Terror” from our fear and anger thereby giving the terrorists their victory and elevating them from a bunch of thugs to an “enemy of the homeland.”
We claim we are fighting against uncivilized opponents, yet we are throwing away the basis of our civilization when we ignore the principle of the rule of law when dealing with those we declare are our enemy.
Is each and every person at Guantanamo a terrorist? No, the release of some of the prisoners held there show that as in every human endeavor, mistakes were made. Once it was said, “better to let 1,000 of the guilty go free than condemn one who is innocent.” If this is no longer one of our fundamental beliefs, what level of collateral damage in the form of condeming those not guilty is acceptable? Remember, though, when you make this grim calculation, with every innocent punished for no reason we create not one but many enemies.
The end of our Pledge of Allegience states that we are a nation with “liberty and justice for all.” Depriving people of their liberty is one of the most feared powers of a government, and the arbitrary use of that power has sparked more revolutions than can be easily counted. This confers a grave responsibility to use that power through a system of justice that is understandable and fair, and if we feel the principles upon which our Constiution is based are fundamental in applying to all humanity, what does it say when we choose to ignore those principles when dealing with non-citizens?
The editorial is partially redeemed by this statement:
What the world needs is a new legal framework for distinguishing between legal and illegal combatants, but instead we are now heading toward the European model where terrorism is seen as just another fact of life and not a unique evil or grave threat. In Germany, the High Court earlier this year released from custody Mounir El Motassedeq, an accomplice of 9/11 ringleader Mohamed Atta, on a technicality. Germany may be able to afford such legal exquisiteness; as the main terror target, the U.S. and its citizens cannot.
Yet the call for a new legal framework is weakened by the complaint about “legal exquisiteness” for it is precisely that attention to the law that is what makes us civilized as compared to those who say they can do whatever they want to their enemies.
Fundamentally, the rule of law is not about selectively applying the law only to the lawful; it is about applying the law to the unlawful, preventing their unlawful nature and despicable acts from degrading our society and our civilization.
If we ignore the law or only apply it when it is convenient, what exactly differentiates our system from arbitrary rule?
opinions powered by SendLove.to
13 Responses to “Guantanamo, the Supreme Court, and the rule of law”
“Through what means was it decided these people are “unlawful combatants” and who made that determination? Was if fair? Was it based on evidence, or merely hearsay?”
Ok, lets play a game here.
Your a dirt poor Afghani with very prospects for any kind of future, other than farming poppies, or selling whatever you can scrape up. The US military is offering 20k a head for terrorists, and you have some poor fool in your village from another country doing humanitarian work through a legitiamte Islamic foundation (and yes they do have them). You turn him in as a terrorist for the 20k which seems like a billion dollars in Afghanistan, and the poor sucker ends up in Gitmo for being in the wrong place at this poor Afghani’s right time. This scenario has played out over, and over now for 5 years, so many of these guys are probably in Gitmo for no reason other than being in Afghnaistan as some idiots decided to attack the US, but mostly got away to Pakistan.
This seems to be the case for many of these prisoners since so many are being released now.
It also misses the point that these folks *aren’t* getting the same rights and protections as GIs. They’re getting Article 3.
…
Gitmo prisoners weren’t picked up by hearsay. You go to a normal Iraqi prison for crap like that – it’s not worth the military’s time or energy.
Almost all prisoners in Gitmo that I’ve found information on were captured “in active”, either actively attacking troops, or transporting/working on materials known to be used to make suicide bombs. This is the equivilant of firing on a police officer or transporting guns into DC (or getting into a taxi that was transporting guns).
Simply put read article four and five of the third Geneva Convention. These clearly state who is protected, and that all that is required is a “competent tribunal” review those whose status as a PoW is not clear. Terrorists, as you’ll notice if you actually read the goddamned text, are not covered since they do not follow the laws of war, do not have a single fixed noticable symbol, and do not carry their arms openly.
If the “competent tribunal” has significant reason to believe that you’re a terrorist, well, than I think you’ve been told what your crime is.
This does not even address the basic flaw in the subtitle regarding giving legitimacy to terrorists, because we have already done so in our reaction to the murders of September 11,
No, after 9/11, we simply said that they were targets worth paying attention to, something previous administrations couldn’t quite understand despite the hundreds of deaths. This is roughly equal to a Somalian warlord, some roughly innocent folks from Bosnia that happened to be ‘too close’ (from 300,000 feet up), or a drug lord.
This ruling clearly states that, from a legal perspective, a captured GI.
Anyone can tell the difference here. Only by complicated mental contortions could you possibly see otherwise.
If we ignore the law or only apply it when it is convenient, what exactly differentiates our system from arbitrary rule?
You tell me. Should we apply the law to every individual that disobeyed 18USC241? That’s a felony offense that I think that covers nearly every individual in the House and Senate, all of the Clinton cabinet, the entire BATFE, a majority of the NEA, and specifically allows, even calls for, Janet Reno and Lon Horiuchi to be executed.
How about all of the European Union, each and every member state having violated the European Convention on Human Rights 1950 (television taxes violating the clause on freedom to receive information without interference).
Should we take those out? It’s a much clearer violation in both cases than anything done by the United States here.
Sean Aqui:
Please do us a favor and read article 2 :
“In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
…
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”
We can pretty much assume that the folks who cut off Nick Berg’s head weren’t following the rules in common article 3, correct?
Our opponents are giving our troops significantly fewer protections than those found in article 3 of the third Geneva convention.
As to the inevitable comments that my line of reasoning allows us to treat captured and military tribunal-tried terrorists like they treat our troops : yes, yes it does.
I’d rather our troops have the option of humiliating someone who just admitted to hiding a bomb in the middle of a city, than they not. I’d also rather that they be given the decision of what is moral or not during a war, than five old guys in black dresses, particularly when the five old guys are ruling on how far their own jurisdiction goes.
So we stoop to beating and torturing KSM. When that doesn’t work we threaten his children. What have we become. Because they are”unlawfull combatants” we can treat them unlawfully and inhumanely. Humane treatment is the right thing to do, We torture because of a threat less dangerous than lighting. I do not want to give up the high moral ground and civil rights to Chimp’s and the Right wings paranoia. Right wing paranioa was a mistake during the 1950′s and is wrong now, the threat of the USSR was greater than a bunch of fanatics.
Actually gatt, many of the prisoners in Afghanistan, Gitmo, and black op sites were rounded up exactly as I stated, with reward money being offered.
“Gitmo prisoners weren’t picked up by hearsay. You go to a normal Iraqi prison for crap like that – it’s not worth the military’s time or energy. ”
All it probably takes is being from somewhere other than Afghanistan, and getting turned in while in Afghanistan, probably is enough to make the military interested.
“Almost all prisoners in Gitmo that I’ve found information on were captured “in active”, either actively attacking troops, or transporting/working on materials known to be used to make suicide bombs.”
I notice 2 things from this last comment you made glaring at me.
The phrase “Almost all”, and a number of prisoners listed. Over 700 prisoners were at Gitmo at any given time, and “almost all” isn’t all, making some in the gray area I mentioned….sounds about right doesn’t it? When you can say with 100% assurance all were caught actively, or inactively working for the bad guys….you get what I mean?
Vague and shadowy captures are indicative of the scenario I posted.
Okay, Rudi, so, as one of the folks who have no problem destroying something that, let’s be honest, may or may not classify as human to save others, you’re against causing physical and mental pain to something that clearly isn’t human in order to save others.
Riiiiight.
I’ll have you note that the “Right-wing” paranoia under McCarthy was right : every one on his list had refused to sign that they were not communists, which would make it illegal for them to work as a government official. He grandstanded, sure, but at least he didn’t just throw the names and locations out into the waters. Now, I can’t say the same for the HUAC, but then again, that was a group chaired by a Communist (named in the Venona project) and a Ku Klux Klan member to start with.
Pyst
I gave the limitation “almost all” simply because I have not and can not read and discuss every one of the seven hundred individual’s stories. Some of them we’re still trying to fill out the whole story on.
Now, can you explain why, despite being so sure of the evils of the Bush administration, you had to apply “probably” twice in the statement “All it probably takes is being from somewhere other than Afghanistan, and getting turned in while in Afghanistan, probably is enough to make the military interested.” Let me guess : it’s because you haven’t looked at a majority or even a large portion of the cases directly, and like to echo what you’ve been told.
I’d rather our troops have the option of humiliating someone who just admitted to hiding a bomb in the middle of a city, than they not.
Gatt, this is a talking point that the right throws around. The problem with using torture to stop bombing doesn’t justify the torture. Once you legitimze torture then torture for revenge is OK. Torture as a deterent to insurgent behaviour is OK, break an arm and others will fear same treatment. If sytematic torture is OK, some nut like Green thinks torture as a sadistic act – rape girl kill family – is standard operating procedure. Like Viet Nam let’s just shoot the insurgents in the head as a form of public display for to condition the civilians. What if an informant fingers athat person to use the US troops to “do his dirty work”?
“The problem with using torture to stop bombing doesn’t justify the torture.”
Again, so destroying something that we’re not sure is human or has a ‘soul’ is okay. But causing non-permanent harm to something that has made clear it is no longer worthy of the title ‘human’, that’s unacceptable?
Can you stop making categorical statements about ethics, unless you’re sure your own stand up to scrutiny?
“Once you legitimze torture then torture for revenge is OK.”
That doesn’t make much logical sense. Would allowing abortion when the mother’s life was in danger encourage people to throw themselves down stairs? The former in both cases occurs under controlled circumstances with approval and a direct goal, the latter… not so much.
“Like Viet Nam”
Lik Vit Nam!
De durk ur joob! Wait, wrong joke.
“What if an informant fingers athat person to use the US troops to “do his dirty work?”
The information about systemic abuses gets through the media, to the people, and both those around the United States and around Washington work damned hard to make any abusers learn a lesson.
Unless they make every operation secret (which, for those not in the know, is damned expensive and near impossible for long), any serious abuses will echo very loud. Let’s compare to your Holy Scientists, who are encouraged to make truely vital changes list under “trade secret”.
Gatt, it’s because there aren’t 700 stories for you to read to begin with.
Yep I used probably 2 times, but nowhere did I say anything about the evils of the Bush administration….but you did by writing it yourself.
Waterboarding, use of dogs, beatings, and use of terror on prisoners doesn’t convince you that they are going above and beyond civlized human norms? Well damn gatt, maybe those Abu Gharib pictures didn’t paint a big enough picture for ya?
I’m convinced you would blow Bush if he but asked because of your blind loyalty, and willingness to ignore the obvious.
I don’t go by echo gatt, but you’ve chanted exactly the daily deflection word for word around here, so don’t try to compare my independant thought for pre-programmed like you use so often.
Either prove your 700+ cases or my assertions stand….but you can’t therefore it is nothing more than what you claimed about my scenario.
Can’t take a swipe without proving yours isn’t propoganda, cause this stuff can go both ways.
Seems to me a lot of people are missing a point. Treatment has nothing to do with who THEY are, it’s about who WE are. THEY can be person who are totally deviod on any human redeeming virtue. That is not relevant. If we mistreat them we demean ourselves. We diminish who WE are.
I do believe that Bill 100%.