Apparently we are heading to a New York show trial of a infamous Guantanamo Bay resident. Some years earlier, a famous essay by Hannah Arendt to whit, Eichmann in Jerusalem: A Report on the Banality of Evil, which highlighted another show trial. In that former trial, to the discerning observer if not to the general audience, political ethics and the public/personal normative framing were highlighted. The prospects seem low, especially given the pre-trial protestations of an assurance of a guilty verdict by Mr Holder, of any such public debate and discussions about political ethics on the public stage. Earlier I queried an interlocutor in conversation over up-coming civil show trial what was his evaluation of the considerations involved in the detainment, processing, and treatment of illegal combatants.

Who are we talking about here. The subjects we are discussing are illegal combatants according to Geneva definition. They use both methods of combat proscribed by the convention and they do not wear uniforms. Furthermore many if not most of those detained are either foreign nationals, al Qaeda or Iranian commandos, fighting not in their own country or in their countries defence.

  1. One of the considerations is that these prisoners do not have a right of a writ of habeas corpus. This, and myself not being a lawyer had to look this up, is the right of a person to request (or demand) a hearing in a court. This of course, begs the question … what court? Putting a person before a court assumes you know what law will apply to them, for law and legal proceedings define the court to which one will be judged. The US high courts do not judge Catholic ecclesiastical law. What jurisdiction and what laws have these men broken, for it seems logical that it is the courts that set up those particular laws under which they should be tried.
  2. Will these men have a defence council? There seems to be at least one consideration on that matter, which is not being widely discussed, especially by the left … I challenge you to find a left/leaning progressive blog discussing this contents of this post (HT: Doug at Stones Cry Out).

    For instance, in the trial of the 1993 World Trade Center bombers, prosecutors were required to turn over to defense lawyers a large amount of intelligence information. Documents from that discovery production, which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout. Let me say that again, confidential documents from a trial in New York were later found in the hands of al-Qaeda

    Does this matter? If not, why not? If it does, what procedures are now in place to prevent a repeat of this?

  3. These men captured, at the very least, are combatants out of uniform. The importance of this cannot be overstressed. Uniforms are not there for a purpose. And that primary purpose is to make soldiers identifiable targets in wartime so in order to protect civilian life. It is far harder to accidentally target civilians when the enemy is identifiable. For all the thousands of remarks made, especially by left leaning commentators, on civilian casualties in Iraq, Afghanistan and Israel … I’ve very rarely once seen blame squarely where it belongs, on those who are not wearing uniforms and are staging military operations in civilian locations, like communities, hospitals, schools and places of worship. How those who are captured who engage in these activities has some influence on how easy it is for others to follow suit.
  4. It has been said that the rule of law, not arbitrary behind the scenes adjudications should apply to these individuals. To that, we all might agree. However, there is no body of law presently in place to do so. Yet, we are rushing to trial in the absence of the same … with an “assurance” of a guilty verdict. Exactly how does that work?
  5. Police enforcement could indeed “catch” more criminals if it didn’t have to rigorously follow laws requiring and directing the treatment and standards of evidence. Soldiers on the battlefield have a different set of priorities and directives. In part this is because of the criminals being sought by the police are not as dangerous or as organized. Many if not most, do not ultimately resist arrest and few criminals are suicidal individuals with access to HE munitions. This is related to the prior point. The body of law and courts which judge these individuals must take into account different standards of evidence than is required in civil courts.
  6. Stepping back for a moment. Take for example, a hypothetical individual under trial. Imagine him to be a Saudi national, captured by US commandos in Pakistan who was a commander that has has fought and directed operations in Afghanistan and in other countries. What court should judge this man? Under what statues? Abstract this for a moment. You have a John Doe, caught by operatives of Nation A in the territory of Nation B. He has directed illegal terrorist and non-Geneva compliant operations in Nations C, D and E. Compare to Eichmann in Jerusalem.

OK. Here is an additional exercise for the reader. The above points were numbered for ease of reference … not by priority. There are two questions. What points did I miss. Are there considerations not mentioned here? What about the order of importance of the above points. What considerations take priority? What considerations are not so relevant?

Filed under: JudiciaryMark O.Politics

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