Access to Courts for Guantanamo

¶ … Access to Courts for Guantanamo Detainees

A peacetime government owes to its predecessor wartime government the time and trouble to study and evaluate the costs spent to bring peace to its tenure. War destroys not only lives and things, but also the ideals of a people, and peace is only supported by strong ideals to bind a people together. The study of war in peace is a fulfillment of the promise that wartime governments promise.

Having triumphed in World War II, the Allieis of the United earned the rein of the new world government. The instinct to "never again" see war gave birth toi a society that wanted peace above all. In 1946, the United Nations was formed from the leading world governments. This administration did all that was in its power to prevent another sacrifice of dozens of millions of human lives to conflict. And in 1949 members convened in Geneva, Switzerland, to pass a resolution that would codify war's conduct for member states. The United States breached this promise only a year later, with the Korea War in 1950. Though "combat operations ceased" in 1955, the war would be the first American war that resulted in a cold stalemate lasting to the present day. It was thus a short period of time before the so-called Geneva conventions of 1949 proved a necessary legal background for an international conflict. Since that time, the role of international law has mounted in need; and with the consolidation of power in the United States, the problem of neutrality has become more urgent. In the case that the United States executive branch can launch a war with neither the approval of the UN Security Council nor even the U.S. Congress, the power to rule jus ad bellum has fallen into the hands of an extraordinarily small club of leaders.. The nihilism that U.S. soldiers experience, often resulting in suicide, might be related to the alienation of this authority to fight. On the other side, America has found itself struggling to define the enemy. The resulting confusion that this poses for legal representation can be summarized by two words: Guantanamo Bay.

The decision to go to war was never supposed to be an easy one, and not many human beings have the capacity to take the law into their own hands. The ability to lead in battle is honored in stories like the Iliad of Homer and so forth, and represents a skill that is the exception to the rule. Terrorists are full of iron resolve direted against the average Joe and Jane Doe; in a term borrowed from psychology, these combatants are characterized as antisocial. On the flipside, the president who launches a war against an undefined terroristic subject cultivates terror, and our psychologist calls this person a demagogue. In reality, the war is not fought by these people alone. The soldiers make the ultimate tactical decision in confronting the enemy, and the soldiers are regular, noncomittal folks. The unique character about a war against terrorism is that the enemy subject is an isolated "cell" opposed to a state apparatus. Small, highly dedicated groups take out maximum civilian targets, the general population generally considered guilty. Terrorism is not a war between peoples; it is a war between an imperfect legal system and radical anarchism. When an imbalance of representible matter exists, the basis of the rule of law is jeopardized.

What may be done in war is authorized by an intermediary party. A court may review claims by Guantanamo detainees based on alleigance neither to the targets nor the suspects of terrorism, but rather to institutions that are biased toward neither side. A court cannot accept reviewing detainees who have declared war on America, just as the detainees refuse to listen to every man, woman, and child in the United States. The court is not a legitimate place to hear the testimony of a sworn enemy, and state enemies are not welcome in state courts. What might give these detainees a place in the U.S. legal system, should we need it, is a change of name from "enemy combatant" to "terrorist." This strategy at once "brings the war home" to the United States's own legal system, and cancels out the notion that the United States is at war in the first place. This logical redundancy has manifested in the name of the newest government administrative body, the Department of Homeland Security.