• "God invented war so Americans could learn geography" -- Mark Twain.

Wednesday, March 20, 2013

The Germ of Tyranny

On the tenth "anniversary" of the Invasion of Iraq, the media is aslosh with the usual postgnostications about the mistakes made and the lessons learned from the disaster the United States inflicted on Iraq. 

Meanwhile, the detainees in "Camp Delta" at Guantánamo continue to starve themselves to death in protest against their continued and indefinite confinement.  Needless to say, those that have lost too much weight for official comfort are on "internal feeds," as camp spokesmen refer to force-feeding. As everyone outside of official Washington knows, solitary confinement and force-feeding are both forms of torture so that, in a brutal parody of Wall Street practices, torture is compounded on torture.  

Equally needless to say, the kindergarden that passes for an American press is incapable of seeing the lesson  to be learned from the very fundamentals of the so-called War on Terrorism.  Simple questions are beneath its sophistications.

Why are these people being held?  Virtually none of them have had a trial much less been convicted of anything. One would think that 12 years' detention without trial was something minimally civilised governments did not do.

The official answer to the simple question is that the detainees are enemy combatants.  With an air of insulted, incredulity, proponents of the detentions rhetorically ask whether anyone in their right mind would demand trials for prisoners of war. 

If one counters that the detainees are not enemy soldiers, the rejoinder is that "terrorism" is a different kind of war in which the "enemy" is unseen, amorphous and chameleon.  Not wanting anyone to pause and ponder the implications in the concept of an "unseen enemy," the official apology rushes on to assure us that, in compliance with Supreme Court decisions, the detainees are afforded a"minimal due process" hearing at which a determination is made by the detaining authority that the detainee is in fact a de facto enemy combatant.  What more could one ask for?

One might ask for some minimum due process which is grounded in the ancient maxim of Roman law: nemo iudex in causam suam.  

The reason uniformed enemy combatants can be detained without trial is that a determination has been made by the enemy government itself that people wearing its uniforms are doing its belligerent bidding.  It is as simple as that. No hearing is required because the enemy himself has declared himself to be an enemy. The determination of enemy status is valid because it is not made by the authority making the detention.  The act of detention and its justification are, in this sense, independent of one another.  

The case is totally different when there is no enemy government or country which has declared war and with whom we are thereby engaged in hostilities.  In that case, the identification and determination as to who is an enemy is an entirely unilateral act by the capturing party.  There is absolutely no independent check or verification of the issue.  One and the same party has effected the capture and has asserted the justification for the capture.  And, of course, since the assertion is that the person so detained is "an enemy combatant" there is no need for trial. This is the very elemental essence of tyranny.

What other image is there of a tyrant than the ruler whose ipse dixit declares someone to be an enemy and throws him into black hole to rot without more?  When asked why prisoner X languishes in an iron mask the self-serving answer is that "it has been determined" he is an enemy. 

But it has not been "determined" in any independent way either by an independent judiciary or by any other government. The detention is arbitrary precisely because it validates itself. Under the rule of law, the measure of law determines the justification for an act. In tyranny, the act is the justification.  

The heap of legal cotton-picking which has attended the Guantánamo detentions has obscured the true seed of tyranny under the fluff.  International law has long drawn a distinction between "lawful and unlawful" combatants. (Ex Parte Quirin (1942) 317 U.S. 1) The former are member of "opposing military forces" -- i.e., they wear uniforms.  The latter are those "who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property." (Ibid) Lawful combatants are "entitled" to the status of "prisoners of war" whereas illegal combatants are "subject to trial and punishment by military tribunals." (Ibid.)

Prisoners of war are combatants who have simply been temporarily removed from the chessboard of war.  As such, they are "entitled" to a long list of amenities and to military respect.  Illegal combatants, on the other hand, may be locked up and punished, provided they have been tried and convicted.  What has occurred at Guantanamo is a monstrous perversion of law whereby alleged "prisoners of war" are incarcerated as criminals without trial.  

But this perversion, as bad as it is, hides the deeper more fundamental germ of tyranny.  Once it is accepted that the act of designating and detaining a person as an enemy is its own justification, there is no reason to exempt citizens. Why not?  Because by "becoming" enemies they "forfeit" the rights of citizenship.  The logic is impeccable once the false premise of auto-justification is granted. It is in this way that tyrannies always end up consuming the people who beget and tolerate them.

What is occurring in Guantanamo is a brutal, barbaric monstrosity hiding under the sophisms of tyranny.  Americans will pay the price... and sooner rather than later.  "My dear Caligula, Rome deserves you!!!"