Thanks for the quote.

I have faith in the American people. I administer a forum for my peculiar form of cancer, of the 650+ members (most of whom are in the US) not one has supported thier President. I will repost just one of many from my American friends.

"Shrub and company have proven time and again they have no respect for anyone, any law, any treaty, any understanding, or any convention - nothing! Nothing stands in their way to achieve their own objectives - which everyone in the world knows is payback to all of the big business campaign contributors.

shrub and company lied their way into a war and overtook a sovereign country without the backing of the rest of the world via the United Nations. Why would the Geneva convention be of any interest to them!

I was surprised his policy was ultimately struck down by the same Supreme Court that installed him into office! "

Thanks Scout. I appreciate that.

And thanks to Rancitas for that very pertinent quote from Melvin Laird. This takes us back to the notion of decency and democracy within a country that prides itself on those values (apparently?), and which should not be swayed from them by anything that its enemies do. It is of vital importance in this ‘war on terror’ that the US upholds the highest standards of democracy. Afterall, democracy is very largely what it is fighting for. Guantanamo, Abu Graib and other incidents have very sorely tested the US’ image of rock solid values and high moral ground, in the eyes of millions around the world.

Through this debate Ted doesn’t seem to have placed any significance in the democratic notion of innocent until proven guilty, within a country that basically worships democracy and espouses it worldwide with almost religious zeal.

Let’s face it, the US has nothing to gain and plenty to lose in the propaganda ‘war’ with its continued detention of the men in Guantanamo without trial. Most people agree that it is well and truly time to try them and they are working towards that end. It seems that Ted is amongst very few that don’t see any significance in this action.

Ted, you wrote: “The logic of your Gitmo argument would seem to be that we should not incarcerate anyone in a system where there is any possibility of error.”

What? This is bizarre! I acknowledged a few posts back that civil legal systems are far from perfect (12 July). But, need I say it, they are vastly better than no legal determination and interminable incarceration.

“My argument is that this self-same principle that we all accept in regard to our regular criminal justice system, applies with redoubled force during times of war.”

OK, so we agree that the same principle of protecting the law-abiding citizenry must apply in peace and war. And maybe it is more draconian in times of war, depending on circumstances. But again, this does for one moment amount to a reason for interminable imprisonment without charge or trial. That’s not draconian, it’s barbaric.

“So unless you are willing to spring the likes of Ivan Millat from prison, I don't think that your argument survives strict logical scrutiny.”

Again I say; “What? This is bizarre!”. Milat was found guilty. That makes any comparison completely inappropriate.

Ludwig:

You state:

"I don’t have great faith in the civilian legal system. The chances of a judgement matching the crime are compromised by all sorts of things, and the chances of even the best democratic legal system getting it wildly wrong are quite high."

Yet despite that "high" chance of innocents being wrongfully incarcerated by a compromised civilian legal system, you accept the principle that the protection of society takes a higher priority. Or in other words, the wrongful imprisonment of a few innocents is a price you are willing to pay to minimize the chance that you will be mugged or your sister will be raped.

Thus there is no real disagreement between us in principle, but only in degree. Because we are in a state of war with a global jihadist movement, I believe that we must expand that mutually agreed principle in order to deal with a more accute threat. Even though I concede that there might be innocents incarcerated at Gitmo, I think that the exigent circumstances of war mandate more draconian measures.

Your position is not as distant from mine as you might want to think. The real disagreement stems from the question whether we are, or are not at war. You are sceptical about this proposition, whereas I hold it to be a self-evident truth in the wake of 9/11, Madrid, London, Bali, etc...

Ludwig"I don’t accept that there should be a different rule of law in times of peace or war, especially one that is so profoundly different in terms of human rights, basic decency and democracy"

Ted Lapkin-"So does that mean that you think soldiers in combat should be required to read the enemy their rights before shooting them in a firefight or calling in an airstrike?"

I think Ludwig objected to this extreme interpretation of the argument, as the point was not to say some circumstances of some peace situations may be no different to those of some war situations, but that regardless of circumstance, principles of human rights/decency/democracy underpin the rule of law. I don't think anyone agreeing with this statement by Ludwig would commit them to, for example, thinking soldiers in combat should read the enemy their rights any more than they would be committed to police having to read the rights of a robber opening fire on them before firing back.

Ted Lapkin-(to Ludwig)"...you accept the principle that the protection of society takes a higher priority...(than)...the wrongful imprisonment of a few innocents...Thus there is no real disagreement between us in principle, but only in degree"

I agree Ted, that Ludwig, and most of the posters here, probably disagree with each other and yourself on a matter of "degree". So do we all believe that some "principles" are the reasons for our views, rather than specific laws/circumstances, and that laws are a society's ways of best trying to implement those principles under different circumstances?

If so, for the purposes of this debate, I'm not sure we even need to debate the principles too fiercely (except maybe as they clash), as long as we can all agree they are something like "human rights, basic decency and democracy" and "protection of society".

The issue is indeed then one of degree- are we in war? If so/not, what does that mean? How far do we protect some principles at the expense of others?

(continued below- but my thanks to Ted Lapkin and Ludwig for this interesting and important, yet considered, debate…)

Ted Lapkin-”Yes this is a different kind of armed conflict. But it is a war nonetheless…”

This raises two questions-
-What is war?
-What consequences does a state of “war” have for the balance of “human rights, basic decency…democracy" and "protection of society".

Dictionary meanings can be trite, but “A state of open, armed, often prolonged conflict carried on between nations, states, or parties.” from http://dictionary.reference.com/browse/war will be more useful here than a metaphoric definition of war (A war on “terror”).

Anyway, this definition is good enough for me, so I’d have to agree with Ted Lapkin that the war on jihadism (or more precisely, jihadists) by nations (Australia & USA et al) therefore qualifies as war.

I also agree “that the protection of society takes a higher priority”. If I could be convinced that 1000 innocents had to be tortured to protect Australia from a devastating nuclear attack that would kill millions, and that this was the only way the attack could be prevented, and that the consequences of not torturing these innocents would be worse, I would agree it was the best course of action. Happily, I do not think I’ll have to endorse such a course of action in the near future. On the other hand, if one person was tortured for no other reason than having different views, that is very wrong.

So if I can be convinced that Gitmo does more good than harm, and that this is the only (or best) way that this good can be served, and that the consequences of not having Gitmo would be worse than having it, then I would have to accept it as a necessary evil (like war itself). But these are hardly matters that can be determined empirically; to determine these matters, posters have used law, history, and quotes from famous legal and war figures.

I remain unconvinced that Gitmo is a necessary evil, on the basis of the degree of protection to society it affords VS the degree of human suffering it causes, but I’ll have to wait until next post to expound why…