Category: Law, Constitution, and Jurisprudence

My libertarian friends seem to be making a lot of noise about recent policy that allows the USA to conduct “indefinite detention” in its fight against terroris. And, despite my desire to circle the wagons whenever possible, I don’t have any problem with “Indefinite Detention”. Although, I’ll qualify that later on. We have a long history in the west, of detaining prisoners of war for the duration of the war, and exempting them from punishment, and negotiating the terms of their exchange at the end of the war, in exchange for our prisoners, and other concessions. One of those concessions is that we hold the group we negotiate with accountable for the actions of the released prisoners. Our tradition of holding prisoners, and the laws that surround it, is ancient. It had multiple purposes. It reduced the likelihood of violence against a soldier, which made men on both sides more willing to join the military and fight. It allowed for ransoms to be collected. And it allowed for more peaceable negotiations since the slaughter of prisoners tends to incite the opposition interminably. So, I have no problem with indefinite detention. That is,assuming that Congress has declared war on a group, a state, or a concept. In our secular legal system, we make the false assumption that an antagonist against whom we can declare war must be a state. But that’s not true. We conducted the crusades, not only because of the actions of the islamic states, not only because of their bloody violence against european property, but because of the INACTION of the islamic states in securing the safety of pilgrims to the holy land. (The bulgarians in particular.) So, one of the virtues of a state, is that a state can be held responsible for the actions of its citizens against those of foreign states. Otherwise a state is just an excuse for giving a haven to terrorists, thieves, pirates, brigands, drug dealers and all other despicable people. But it’s not just the abstraction of a state we can old accountable. A state is just an idea, a territory, and a group of people. We can also hold a group, or idea accountable. We certainly held Communism accountable. And if we had been as vigorous as say, (general ww2) wanted us to, we might have saved 70 million chinese, and 20 million Russians from fratricide from starvation and murder at the hands of their own governments due to an absolutely insane economic ideology. We can certainly hold groups accountable for their actions, regardless of their state or lack of one. We can certainly hold peoples accountable for their religious and cultural associates. All that need justify “indefinite detention” is an act of congress that labels a group, a state, a people, or an idea or movement, the subject of a declaration of war. If then people feel a terrible objection they can certainly move their congress, their senate and their president away from war against their own people. It is not citizenship in the abstract that protects an individual from acts of war by his own country. It is his subscription to it’s laws, and covenants, which are demonstrated by his words and actions. War is not a matter for law. Law is for the purpose of resolving conflicts within a state. War is for resolving conflicts outside of law. And if a country declares a group, an idea, a people, or a state the target of war, then individuals who conspire and associate with a group, promote an idea, belong to a people, or are citizens of a state, are no longer criminals, but combatants in a war, or traitors. I don’t have any problem with “indefinite detention” of anyone against whom we declare war. I don’t understand why I should fear my government outlawing me for my ideas, associations, or actions. And, given the political power of my fellow Americans, I am not terribly concerned with outlawing the ideas, association or actions of others. And, taken to the extreme, should my government declare war against me for some reason, then I am no longer prohibited from using my inventory of violence against that state. Because it is my violence that I give to the state to use on my behalf when I become a citizen. A state is nothing but claim to a territorial monopoly on violence. And should my state reject me, or outlaw me, then I no longer must restrain my violence. And I may use it to any moral end that I choose. Be it to overthrow that state, form another, or give my violence to some other state, some other group, in support of some other idea, so that either I, or others may use it on my behalf. Indefinite detention is a meaningless objection by libertarians who are convicted pacifists rather than practical observers of human nature. However, any indefinite detention must be limited to those imprisoned under articles of war. They certainly have a right to military tribunal, but the only argument that must matter to the tribunal is whether they are part of the group, a member of a people, a state, an ideology against which we have made a declaration of war. In our own legal system, the judiciary has determined that legal recourse post-hoc is a sufficient guarantee of liberty for the individual. While I disagree with their position because of the value of time and opportunity, and because it lets the judiciary act too slowly and irresponsibly, any argument that the due process of law is superior to the process of tribunals is at best a false equivalency, and at best an open deceit. Indefinite detention is entirely acceptable as long as there is a declaration of war. In fact, it’s preferred.