Cross-posted to Random Fate.
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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?