Baron, aside from being invaded by England (who at the time were probably fighting by more civilized standards than the Americans), which is going pretty far back in American history, you're right. There was widespread fear, mostly in the coastal cities, of invasion during WWII, but that was more fear than anything else, and since it was never born out, I'd agree it didn't have the long-term effect of an actual invasion.

I also agree that there is a tremendous problem when it comes to distinguishing between unlawful combatants and civilians. But that's pretty much why unlawful combatants operate that way in the first place, isn't it? To gain an advantage from the unwillingess of the other side to attack civilians. The whole idea of establishing categories of lawful and unlawful combatants was to restrict the conduct of warfare to lawful combatants and legitimate targets *and* provide mutually agreed upon standards to avoid targeting 'non-military' individuals and structures without sufficient cause.

Sit in a mosque and pray, you're a civilian and your mosque is not a legitimate target. Use your most as a firing platform and/or a military headquarters, then the otherwise sacred and off-limits structure and it's inhabitants become a legitimate target *and* the blame for any damage to the building and it's inhabitants is laid at the feet of those using it as a military structure, not those who at least try to respect it's civilian status.

"The problem the US has right now is that people cannot under any excuse be held for two years without charge or lawyer"

That is indeed arguing for a new standard, if you accept the governments claim that a state of war currently exists. Are you arguing for such a new standard, or that no state of war actually exists? If there is a state of war, even lawful prisoner's of war can be held without a lawyer (tho they are entitled to other legal rights, including visits by the Red Cross, and the ability to lodge complaints if their POW rights are not being respected).

The Geneva Convention and legal precedents are less clear, although in practice that seems to be due to the fact that most unlawful combatants were unlikely to be taken alive, or executed *because* they were unlawful combatants taken on the battlefield.

But I also agree that the times require a higher standard of accountability, including requiring release or at least military trials after some reasonable period of time. And that might actually have something to do with the government's strategy. A lot of the guys in Guantanamo, if faced with a military trial, considering the conditions under which they were captured, would probably warrant the death penalty for war crimes.

I'm not sure I'm prepared to actually advance the thesis that indefinite detention is preferable to the death penalty, but I'm also not sure I'm willing to grant civilian courts the right to decide whether people have been properly identified and detained as unlawful combatants in a time of war. Unless we appoint battlefield lawyers to every platoon, humvee, and swift boat.

Doesn't exactly sound like a recipe for a more just war to me.

A simple thought experiment: I ask someone "what is the square root of 5," and they answer, "2." I say, "Sir you are wrong." However, without a calculator and being a very poor mathematician, I can offer no solution.

The fact that I cannot provide a solution does not make my observation incorrect.

A more relevant thought experiment: I am a 19th century surgeon and I diagnose someone with a brain tumor. I know of only very course means of removing the tumor, means I know to have a very low survivability rate. Do I operate or not? In either case, I still don't really know much - other than the fact that the patient has a brain tumor - and can offer no assurances that my methods will help; in fact, they might kill.

I am not incorrect in asserting that the patient has a brain tumor, nor am I morally culpable in having little to offer in the way of correction. Yet I must make the decision to operate or not.

Essentially our disagreement is not over the problem itself; our disagreement is whether or not this set has a solution. I have a few in mind, but I know full well the violence they imply, so I refrain from offering them up, much less acting on them. You believe that there may be a solution (although I'll grant you the status of agnostic) if we but look hard enough. To this, I say that there well may be a solution, but that in the time we're allotted, we are unlikely to find it.

This message has been edited. Last edited by: digitalprimate,

If you tell me the square root of 5 is not 2, I can ask you to explain why I am able to correctly conclude that 2 is the wrong answer, and you can probably tell me - *even if* you are not able to tell me how to precisely calculate the square root of 5. You must have at least some sufficiently solid knowledge of mathematics to conclude 2 is not the square root of 5, even if if falls short of the knowledge required to ensure deriving the precise answer.

Otherwise, I can tell you that you're wrong for *every* answer you give me, and to a first approximation, I will be right. But what cause for satisfaction is there in that? There are an infinitely greater numbers of ways to get any answer wrong than there are to get any answer right. I happily concede that point. But it doesn't mean you can tell me I'm wrong and then refuse to tell me why.

If you're going to claim the Bush administration has these detention cases all wrong, then yes, I think the burden falls upon you to at least establish why they're wrong.

I'm no more willing to grant your hypothetical 19th-century physican the power to just *know* his diagnosis is correct, or just *know* that any course of treatment is risky than you are to grant that Bush just *knows* he's doing the right thing in the detention cases.

If you are claiming that the Bush administration is action in violation of the law, you can reasonably be asked to support that claim. If you are arguing that the laws under which the Bush administration is claiming to be acting are legitimate laws but being misapplied, it's reasonable to ask what their proper application would involve. If you are arguing that the Bush administration is acting according to unjust laws, then you can be asked what laws would be sufficiently just.

Is Bush's position on the detention cases wrong? Why? What would be a *less faulty* procedure to follow? What would be a less unjust standard to apply? What would be a more defensible law? These are not reasonable questions to ask, reasonable standards of debate to hold ourselves to? What entitles us to demand others get the right answer when we do not even hold ourselves responsible for establishing our own claims that the other guy's answer is wrong?

If you are diagnosing the treatment of detainees as 'wrong actions' you are responsible at least for meeting the standards of proof for the diagnosis. And I see no purpose in establishing that diagnosis unless our purpose is to first, do no harm, and second, try and figure out what the best course of action would be.

First, your extension of the medical metaphor into the final paragraph was very, very good

Second, I think I should have added a quotation for a bit of context into my previous remarks (but I didn't, slave to rhetoric that I am). I was addressing your comment that there's little point in having a dialoged unless one presumes that the dialogue can come to some conclusion, the inference being an actionable conclusion. I was trying to point out that one can point out that something is wrong without knowing how to solve the problem, or even precisely what is wrong.

Yes, this is frustrating. Hermeneutically however, it's a sound way of progressing. In fact, the history of moral and political thought is just that: someone names a problem, give it scope and an history, and - once so named - other thinkers can later solve the problem. Truly, I think the detentions are part of a much larger and more important problem, one we've seen before yet one that's never before had global implications. No, I don't think the SC rulings will really affect this one way or the other, except perhaps to polarize American political thought, such as it is, even more.

However, I still have some hope, however small, that there will be some event, some strange attractor perhaps, to turn this state of affairs all around. I just don't share your optimism that this will arrive from within our present system. In other threads I have argued heatedly for the principals of Democracy, and I still believe in those. I'm just not sure the way Democracy is now manifest is the only or necessarily the best way, and I think the current moral morasses in which we've found ourselves only highlight the problem's encompass. But I'm not fit to shine Rousseau's shoes, let alone Jefferson's. I don't know what the solution is, I only sense the problem's urgency.

But no matter how black my posts, never forget my first sig, the state motto of South Carolina, dum spiro spero

I fully agree that one can legitimately identify problems without having the solution. But I am not willing to extend that principle to the point of declaring Bush a bad, bad man for doing what he thinks (and has his lawyers arguing before the Supreme Court) is the right thing, or perhaps, a sufficiently acceptable thing.

If you want to go that far, then you are going beyond declaring yourself unsatisfied with the present state of affairs to blaming Bush for knowing the right thing to do and refusing to do it. The burden of proof lays on the one making that kind of claim. Near as I can tell, Bush is trying to act on established precedent (tho I'm not sure present circumstances meet the necessary conditions to qualify under that precedent). The burden of proof lies on him to act according to precedent, if he wants to appeal to it for justification. But if you want to declare he's acting illegally, or unwisely, the burden of proof falls to you, just as it does on any physician making a diagnosis.

"someone names a problem, give it scope and an history, and - once so named - other thinkers can later solve the problem."

Again, I agree, and we have both agreed that indefinite detention is problematic in general, and especially in a war that is not likely to have an easily identifiable cessation. I just hoped we were far along enough in the process to be those 'other thinkers.'

My biggest worry (the problem I sense most urgently) is that the political partisanship going on and the 'arguing principle from convenience' is going to end up doing as much or more harm than any other category of mistakes being made these days. Therefore my goal is to find standards that both sides in a debate can agree to, in the hope that both sides may be brought closer to finding solutions that both sides can agree to.

Flinging charges against the other side without being willing to bear the burden of proof does not rise to that standard. And I think the cause of Democracy is better served by being willing to grant the other side better treatment than you might think they deserve. Whether prisoner's of war, or opponents in the general election.

Well, JB, you've really pinned me to that physician metaphor. But I'll accept it because I think it's an apt one. So, in this sense, we're not really arguing over the diagnosis, only over the cure and the responsibly of those who diagnose to at least attempt a cure. Leaving metaphorland, I would say that President Bush the Younger (and, if nothing else, I want to be remembered as the guy who first adopted this Latinate conceit!), does indeed have precedence on his side, and that the burden of proof that his administration is pursing the wrong course lies on the other side. However, I think I've already argued the details of the wrongness of his adminstration's course of action.

Moreover, I think we agree that his present course is neither efficacious nor moral. However, where we differ is in that you seem to believe that a few legal tweaks will make everything right while I believe that discussing legal tweaks is to a drowning man the same as the discussion of the physics underlying the principals of buoyancy.

In terms of standards, while I think that there are some rare times in history when enough men of good faith can agree on standards long enough to produce something valuable, something that changes everything fundamentally, I see few of those men on my television. If one can't honestly persuade and one believes one is right, then the final recourse is violence, one of the few principals about our current administration I actually respect. I don't really see how an argument of who started the fight will result in some clear moral syllogism, but I do know that the fight is upon us whether we will it or no. I don't hold much hope for the side I think is just, nor do I have any clear idea how that justice plays out in a modern world, but I do know that whatever the court rules, as long as folks are willing to accept secret detention and secret tribunals whether out of fear or shear apathy, this one small part of the problem will remain.

//But if democracy is probably a failure, and you're willing to offer no alternative, why are you wasting your time complaining? There's no point, is there? And if you feel your own complaints are pointless but you still insist on complaining, then maybe we should open up that solipsism thread after all? // quote.

To paraphrase Robert Dahl, western democracies are only symbolic entities, not functional and the demos have nothing to say per se, hence no "democracy" could exist and the concept of such is illusive. So to speak of "democracy" is to miss the target completely, If your aiming for good analysis the u better shoot elsewhere.

Walter Lippman said that the bewildered herd must be tamed and that is the main function of the populace, to remain in shackles and to be led, this is certainly the case even in our times.

This is the framework to render the politcal paradigm in if your looking for "real world" arguments.

there is no failure of the demos in illusions, power is however channeled through illusions.

Every political power entity has the means and the main initiative to define criminals and those who oppose the state of said power. Terrorism is the ultimate definition of criminal behaviour and to define the soldiers of the antagonist state in question "unlawful combatants" is gratiousnes in exelsius, not adhering to multilateral agreed law.
Thus the law is set in the domains of wartime, where the main power is stipulating the axioms and the rules of law. To obliterate the legal process and vanquish the concept of citizenship and elementary human rights. This is the antithesis to GC and internationally ratified law where the MO of POW treatment are defined. The UC Is not even close to an internationally ratified legal concept, this is the brainchild of and neoliberal oligarchy pushing the "!panic button" The main function of this is to sidestep the GC and to put aside legal obligations and multilateral responsibilities, to push the agenda of power.

UC´s and the ICC are "enemies" of the US and the business-government rule who sets the agenda of political conduct and international relations. The UC concept must be validated through these narrow political terms that defines the main superpower. Did anyone say recycled reaganites ?

Keep in mind if you practise UNILATERALISM all arguments and non gratious "solutions" are OFF.
This is the main political behaviour towards UN; Out of order unless they "sway our way"; to paraphrase M Albright and the guys before her.

The problem with UCs runs much deeper. I mean, is like we are forgetting we are no longer living in the Middle Ages, when only the soldiers went to war and civilians were mostly not taken into acount for battles. WWII destroyed that way of making war by making civilians legitimate targets (OK, rape and plunder went on before, but that was the aftermath of a battle, not the battle itself. Civil "modern" warfare brought us safety for civilians after the battles, but no safety whatsoever during the war.
We are still to value if we won or not with the change in situation. Before we were targets after our troops had failed, now we are targets even before that. I personally believe humanity was then better off before, since if you have two sides, only one of them would suffer, whereas now is all of us.
Regardless.
The problem is. Imagine you sit in your house, and a stranger comes in through the window, door, wall, whatever. Kills your son and looks at your wife with a strange glint in his eyes, and rapes and murders her, and when you arrive home you catch him in the act of raping your daughter. Let´s say, twelve year old, your princess.
Now, if you are in the US you go to your bedroom, get your gun (in Europe a knife or a club will do) and kill the f**king bastard and probably even enjoy doing so.
So now your country is in war and that makes you an "Unlawful Combatant" and you are lucky if your house is not wiped from the face of the Earth and you end up in a camp for two years.

Beautiful, but I don´t buy it. The problem is that you remove that war thingy and no jury or judge will ever condemn you for doing the bastard, even if you took a good day and a half to kill him as painfully as you could imagine, or had the stomach to. Now, then, we are saying that because there is a war going on a father cannot believe he is doing the right thing and defending his wife and kids when he grabs a whatever lethal weapon and uses it against what he sees as an enemy soldier? Dehumanization is normal in war, but I sincerely do not believe that any human being, even the most filthy coward, would not do that. Think of it. What would you do to defend your family, your loved ones? wouldn´t you kill, or die, for them? All of us would, and we are saying that that makes us Unlawful Combatants. Hey, I am not saying that I think they are fine people, or good people, or that they do not deserve a bullet in the head. Is the UC thing that bugs me. If they were fighting a war without wearing a uniform, they must be either be judged as civilians, if you deny them the "Lawful Combatant" status (What the hell means that?), or as enemy soldiers. Regardless of the fact that they are wearing, or not, green clothes (or brown or whatever according to the Theater of Operations).If we accept the fact that the UC concept is not a sinful invention of some cruel politician, then we are saying that next time you sit in your living room watching TV and somebody crashes into it and kills your kids and rapes your wife, you will have to sit patiently and wait for some of the people legally authorized to wear a uniform to go there and kill the guy.
Come on, is just too evil a dumb thing to think.

By the way, I hope nobody imagined I was accusing any of the Coalition troops of killing kids and raping women, I was putting some extreme cases to make my argumentation clearer. Yet consider that most people will fail to see the difference between having your daughter raped or having some one who does not even talk your language talling you that they are only invading you for a while, to bring you good stuff, and that the dead people around you are casualties by mistake.

Personally, if the country I live in (not my own) is ever invaded by foreign forces, even if they come to take out a particularly nasty head of state unlawfully gotten to that position, I will kill with my own hands whomever gets close to my family, just to be in the safe side. That would include foreign forces coming from my country of origin.
I particularly believe that if the people of a country does not have the guts to take out any particular tyrant, they do not deserve to get rid of him (seldom her). And I know what I am talking about, I live in Spain, where everybody (or almost) celebrated with cava (spanish champagne, in occasions better) the death of Franco, yet shat in their underwear if they were forced to even think of the possibility of talking bad about the guy. Now everybody is very democratic, yet Franco died in his bed after almost 40 years of tyrannic, fascist government.
And by the way in many things he lasted that long thanks to American money, which is why spaniards tend to laugh (bitterly) their heads off when the US troops invade yet another country to teach them the good things that democracy has.

MvR

Looks like JB may have checked out folks...