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.