Hi Schmedlap,

Quote Originally Posted by Schmedlap View Post
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?
There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it). The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.

If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory. Thus we end up with attempts to create a new category that is not covered under international law. But this attempt has been viewed, both within the US and internationally, as way of operating outside of international law and contravening the UN charter. This is one of the legal reasons for giving them trials.

A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way. This process is well summed up in the poem First they came attributed to Martin Niemöller.

Quote Originally Posted by Schmedlap View Post
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.
How about laws against polygamy and polyandry ? Almost any law that enforces a moral code can, and will, be laughed at by people who don't agree with that code. For example, there are, I believe, still some laws on the books in parts of Ontario that make it illegal for an unmarried couple to dance within 12 inches of each other. And, as far as I know, it is still illegal to drive your flock of sheep down Younge street in Toronto between the hours of 1 and 3 PM.

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.