Response to a Huffington Post article

Eugene Volokh is one of the conservatives on Huffington Post (yes, they do exist), and his latest post (the link on his name) argues the standard line about detention of "enemy combatants" without trial. My summary (in that I disagree with him) will obviously not do his argument justice, so I urge you to read it, but to my eyes, it boils down to "In war, POWs are detained until the end of the war but never charged, because the rank-and-file soldiers generally aren't guilty of crimes, only of being in the army for their country. As a result, you hold them until the war is over, at which point they become non-threatening, and you release them."

He also neatly avoids (by saying that he's going to) the argument that there may be among the detainees those who were seized by mistake. This is the jumping off point for my reply.


Ah, but I'm afraid you can't so easily lay aside the question of whether the person was mistakenly apprehended, because that's EXACTLY why people don't like the indefinite holding without trial.

Look, the problem isn't with the terrorists. If there were a way to know, absolutely know without ambiguity or chance of mistake or corruption, that someone was guilty of a crime, few people would argue for that person's rights or fair treatment.

But the problem is, in the admission that there MAY be people in there who have been detained mistakenly, falsely accused or picked up because they had the wrong name or were in the wrong place at the wrong time, you set up a situation where you are honor bound (by the rules of our society) to find these people and free them.

But how can we reliably detect the ones we have detained mistakenly? If we could reliably tell, we wouldn't have detained them in the first place. Without some form of trial or advocacy, who knows when any innocents among the detainees will be identified and freed?

Your arguments on detention during war time have merit, of course, but only in a conventional war, when the infantry and the enlisted men are fighting because they were told to, rather than for an ideology, and would stop if told to stop. This war will never be over, so long as human beings remain on this planet. There will always be those who feel they have right on their side and are being oppressed, and there will always be among this group those who feel the ends justify whatever means they must employ. So there will always be terrorists. And as long as there are, there will always be a war on terror. And as long as terrorism is perpetrated not by a country, but by martyrs who wholly believe in their cause, you can't beat them, because removing the head of the organization will cause another hydra head to sprout in it's place.

So the argument that enemy combatants are released when the war is over is spurious in this war for two reasons:

• It presumes that those enemy combatants will go back to their country and, since the country has ceased hostilities, so will they. Not true of terrorists who, in large part, perpetrate their heinous acts alone or in small groups. The head of this cockroach doesn't have to be attached for the body to continue to scurry.
• It presumes that this war will at some point end. The war on terror is like the wars on drugs, hunger, poverty, etc. Or like many people's war on flab. It's a war you can be "winning" or "losing" at any given point, but it is never a war you can entirely win.

So by your logic, we will be holding these "enemy combatants" until they are dead of old age, and because we argue we have no moral obligation to try them for anything, we will never identify those who may truly be innocents captured accidentally. And thus, innocent people (maybe only one or two in all 500, but even so) may spend the rest of their lives in prison, deprived of friends, family, their lives and their freedom.

Doesn't sound, to me, like what America is supposed to be about.

Liam.