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Little old lady combatants

A common law school teaching device is called the Socratic method. Primarily using questions, a professor leads a student on an exploration of the reasoning behind a particular position or argument. It can also demonstrate the absurdity of certain positions.

A perfect example may have occurred in a Washington, DC, courtroom Wednesday as the government tried to justify the unlimited scope of powers in detaining so-called “enemy combatants.” According to press reports:

Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.

“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her.

Let me repeat that. “Someone’s intention is clearly not a factor that would disable detention.” What in the hell is wrong with these people?

It is a fundamental principle of justice that innocent conduct should be spared from sanction. It is intent (an “evil mind” or mens rea) that creates personal culpability. Bush himself recognizes this when he talks of “evil doers.” Yet under the Bush “law of enemy combatants,” someone can be incarcerated regardless of any intent or desire to cause or support harm.

The fact the Bush Justice Department has totally divorced the so-called “war on terror” from any concepts of legality or justice was demonstrated by other parts of the argument before Judge Green. The government in essence told her that it is up to Bush, not a judge or anyone else, to determine how long combatants could be held. Given the fact the “war on terror” is one that can never end, we are asserting the right to even detain the little old lady in Switzerland forever.

No doubt there are people out there who mean to cause us harm. Yet perhaps we would be better off if we devoted our efforts to that rather than abusing the power available to stem that threat.

(As an aside, maybe the spotlight Judge Green’s questions shines on the danger of the government’s position explains its effort to keep this case out of her hands.)

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