Crimes, War Crimes and the War on Terror

[wm]

The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

The simple answer is that this what a civilized, law-abiding nation does with people who act outside the bounds of accepted behavior (laws and civilized customs in other words).

Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

Protections of one's rights, as codified in the U. S. Constitution and its amendments, are viewed, rightly or wrongly, as the sine qua non of how to treat someone who has been accused of infringing on the rights of others. Another way of saying this is that when one infringes on the rights of others, the infringer does not thereby forfeit his or her own rights. To adopt the alternative position that one forfeits rights as a result of misconduct would be tantamount to adopting a position that "two wrongs make a right," a position that my parents and grandparents (and probably most other readers' as well) taught me was wrong (morally).

In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.

Undermining the rule of law is very different from changing poor laws. It may well be the case that sometimes one must use other than peaceful means to change laws, but even in those cases, there are lawful and unlawful ways to do so. By the way, I think it is open to argument whether what may have passed for the rule of law in Taleban-controled Afghanistan really was a version of the rule of law in the eyes of the rest of the cvilized world.