Could Due Process Equal Whatever is Due to You?

Recently the Supreme Court decreed that the captives held at “Gitmo” can not be put before the new tribunals designed for their – originally unanticipated – deeds. Some, and that includes many in Europe, rejoice. The misdeeds of the hard-core activists held there are hard to prove in an American court. So the pleasing implication for the Gutmenschen [”Nicefolks” in my best translation] is clear. They must be let go. Once at large, their deeds will claim new victims. No problem for by then the lenient measure making new crimes possible will be conveniently forgotten.

In actual fact, the implications of the decision diverge from what reporters ignorant of the US System allege. Instead of having to close Gitmo or needing to let the captives go, Bush – pronounced by the salivating pundits as “destroyed” by the Court – needs to find authorization in Congress to deal with unusual culprits in a tort that, eons ago, was unforeseeable.

To this non-lawyer the problem seems to have two components. One has to do with the lawfulness of military tribunals. This is an internal US issue. The other one concerns the status of persons that US forces have captured in war zones close to hostile activities aimed at the forces apprehending them.

The reason for not coming to a quick agreement regarding the rights of this element is manifold. The rules of war are akin to a football game’s. The normally identifiable members of a military representing a state in a declared war are assured of POW status. Unless the captor violates POW rights – as did Nazi Germany and then the victorious Soviet Union – the captives can not be handled as criminals and have a right to return upon the end of the hostilities. The last I heard, irregulars lacking identification are considered to be unprotected by the rules of warfare for they had violated these by their comportment. This meant that if captured they were given long sentences or were executed.

In the war against terror there has been no official declaration of war. Using the football analogy, the conflict had no official start – and is unlikely that we will hear a whistle after the elapse of the proscribed periods of play. Contrary to the wars regulated by accepted rules, this match does not have a clear venue. While the playing field is everywhere, there are no bleachers for what could be, by the mutual effort of the contending parties, protected bystanders. In fact, involving the bleachers and demolishing the area outside of the “field” is a feature of the new war. So, the struggle takes place everywhere and is not limited to a battle field. This flexibility of open-ended operations amounts to more than a mere occasional foul by handling the ball while out of bounds. The departures from the kind of contest the prevailing rules regulated add up to a new ball game. It seems to be of significance that this new type of contest has not been invented or first practiced by the intended victims of terrorism such as theUSA or Israel.

At the same time, a selectively upheld part of the rules are, in themselves, becoming an effective auxiliary PR-weapon of the new type of war being waged. It seems that the camp consisting of leftists, Islamists, multi-culti Gutmenschen, anti-modernists, anti-Americans and the apologists-of-success wherever it may raise its ugly head are effectively using the “Law” in two, if analyzed, contradictory ways.

If the “misdemeanor” is caused by “them,” then it is to be overlooked because the perpetrators were “frustrated” and outraged by “centuries of exploitation” blamed by elegant associations on the victims. Since the prevailing law ignores this feature of the act, the “Law” normally regarded as applicable, is to be suspended. Once the issue of retaliation arises the victim’s reaction is subjected to a prejudiced application of what the “Law” should be. The result is a convenient, albeit distorted, world represented by a verbal flexibility that might defy reason but qualifies as good PR. The occasional and legally sanctioned abuse of prisoners by the US is (properly) called a crime. The media-reaction: great upset. After all, our principles were violated. The Jihadist advertised torture followed by murder of their victims is called an execution. The result: end of sentence from the pundit. No wonder, since they acted strictly according to their faith. Let us now put the generalization about this oxymoronic systematic inconsistency into a concrete setting.

The two-timing evaluation and the application of skewed judgments that alternate between pusillanimous “understanding” and chest-beating “condemnation” depending on who is helped by “tolerance” respectively by “denunciation,” seems to follow a pattern. Pertaining to the case of detainees, the blueprint is like follows. When it is to the advantage of fighting armed Islamists they are “soldiers.” When in the course of their actions they systematically and by policy fight by ignoring the rules of warfare, humanism and decency they are, as civilian insurgents not bound by these or any other rule they care to violate. Once these fanatics, who have, by word and deed repudiated civilization are captured, they are again to be considered as soldiers. As such they are protected by the international law on warfare and by the due process rules of the (otherwise despised) Americans.

This state of affairs makes one close the exposition with two propositions. The first one: you can have it both ways but only by getting away with it if opposed by fools and not by right. Second: “due process” might just be the process that is due because it is deserved.


@ Vanhauwaert

There appear to be some misunderstandings between us, partly due to linguistic imperfections.  You did indeed NOT say that the Guantanamo detainees do not have access to "a legal process".  However, your three paragraphs were so cryptically phrased that they are easily susceptible to different interpretations. 

The US government views the detainees as prisoners-of-war, and does not want to accord them the status of 'common criminals'.   It views them as prisoners in the 'long war' against Al Qaeda, and more broadly against islamofascism.  You are right that Guantanamo is all "about denying them prisoner-of-war status"  as defined by the Geneva Conventions.  The latter were the product of an international legal system based on state sovereignty, and their primary purpose was to promote 'reciprocity' in the treatment of prisoners-of-war.  Needless to say, they have never achieved that in conflicts between democratic and totalitarian states.  And, even more so, they are totally irrelevant from the perspective of islamofascists who want to achieve ideological ends based on asymmetrical war.


If Americans and other democrats treat prisoners humanely it is not because of 'international law' but because of their own legal and moral strictures.  Nevertheless, the US government has just announced that it will treat ALL military detainees (including Guantanamo detainees) "AS IF" the Geneva Conventions were applicable to them.   This does not mean a recognition of prisoner-of-war status  as envisaged under the Geneva Conventions,  but it is simply a way of saying that it will treat all prisoners-of-war humanely. 

When the asymmetry goes too far...

They are not solders and if afforded Geneva Convention protections prohibiting interrogation they are not even worth detaining methinks that if we can’t try them in tribunals we will stop detaining them in any significant number- no quarter.


When the asymmetry goes too far it will be over.

Which lawyers are defending these evil doers?

The lawyers defending Gitmo evil devils and whoever took the case to the Supreme Court need to have their head examined!..!!

They may need help! I doubt if they are Christians!!!

There are many more such criminals right now freely roaming around in Pakistan and India that may never get any punishment at all. Did you know that Indian madraasas are as viciously dangerous as the ones in Pakistan? Just last month, a graduate of one such madraasa was involved in a barbaric terrorist attack and was luckily caught!!..!

Is EU undermining global security?

By demanding to get Guantanamo closed, EU might well be doing that. Today Colin Powell joined the chorus. I think it is senseless. Due process and Geneva Convention are applicable to regular citizens and regular war captives. This one is NOT a regular war but asymmetric savagery breaking all rules, laws, limits, boundaries,..
These are some of the worst criminals the world has ever seen and only the pakki fascists are more cunning, tricky and dangerous.

To put EU advice to practice, why not EU take them and donate their wealth to these criminals and provide virgins here on earth, pre-empting suicide missions.
Does that make sense? No.

But one sane advice is that they can indeed be sent to India that has half way decent legal team for trials and for safe-keeping in return for waiver of all of India's debts of the kind that many African countries got. Jail in ANDAMAN islands of India is totally vacant. Anti-brit rebels were housed there before the brits left. That way, some of the poverty stricken masses may be lifted out, given it is indeed so dire that many farmers are committing suicide for the past several years and Govt woke up to it only last week..

'Strawmans' and strawmen

@ Vanhauwaert

If the parroting of the anti-american media and the hypocritical so-called "human rights community" would qualify as putting up "strawmen", then you are pretty good at it.

The detainees at Guantanamo DO have access to "the correct legal framework", the american military justice system, that pertains to prisoners of war.  Strictly speaking they do not have a moral right to that framework, as they partake in a war in which their side does not adhere to any customary 'laws of war', and certainly not to the Geneva Conventions which are largely being misrepresented in the media today.  Those that remain at Guantanamo today are almost certainly better off than most that have been returned to their 'home countries' (including some European countries).

The recent Supreme Court decision in the USA is an internal American affair and forms part of the continuous 'checks and balances' between the three branches of democratic governance.  Traditionally, and correctly, the Executive has had great leeway in the CONDUCT of (any) war, including the treatment of prisoners under the existing military justice system (established jointly by the Executive and the Legislature).  The Supreme Court Decsion does not 'question' the existence of 'Guantanamo', but it forces the Legislature to get more involved with it. Politically speaking, this will prove to be a 'gift' to the Bush Administration, as it will force many fence-sitting politicians to deal with the practical problems of dealing with 'illegal combatants'. By contrast, in their role of 'useful idiots' for islamofascism, the anti-american European media and UN-hypocrites will - of course - continue to enjoy the luxury of making remarks from their pluche sofas and leave the heavy lifting to others.  It was no different in past struggles against other forms of fascism.

Why do you feel the need to point out

that these detainees have access to a legal process. Did I say they didn't? There is no question about that. Anyroad, you seem to be totally confused on the issue. For example : they are _NOT_ held as prisoners of war. In fact, quite the opposite. The whole Guantamo Bay prison is all about denying these people (terrorists?) the prisoner of war status!

Stop putting up strawmans

Especially if the captives held at Guantanamo all (from first to last) are vicious terrorist intent on causing as much civilian casualties as possible, it is of utmost importance to try them fairly and correctly (which in that case, will necessarily lead to a harsh punishment)

People (and not just leftists) calling the US to give these prisoners access to a correct legal framework is indeed applying double standards. As a civilized nation, America should be affronted if it were to be judged on the same moral scale as the likes of Al Quaida or the Taliban.

Being splendid is what the Great Nation did when confronting North Korean irrelugars 50 years ago by dealing with them as POWs under the Geneva convention despite them not wearing uniforms, targetting civilians and torturing North American captives. It's called the moral highground and as far as I am concerned, the only acceptable position in this matter, which is in essence, a war of values.