Convicting words

Stephen Harper, Canada’s Prime Minister, comments, “It is impossible to underestimate the significance of the rule of law in a modern society”:

It is a profoundly inclusive concept. One that subordinates all social, economic, political, and individual behaviour to an agreed set of codes and regulations. To have meaning, these rules must not be the exclusive preserve of a privileged few. They must be the common property of all citizens. They must be clear to everyone, taught to everyone and applied to everyone in a uniform way.

No one can be above the law. And no one can be forgotten by the law or denied its protection.

That’s a quote from the Prime Minister’s speech in Shanghai last week (hat tip, Paul Wells).

The remarks were intended as an exhortation to the Chinese government, to clean up its act. How sad that the words are equally convicting when applied to the government of the United States of America.

“No one is above the law.” Except for the President, who can flout the U.S. Constitution any time he claims he is acting in the interests of national security.

“No one can be forgotten by the law or denied its protection.” Except for any person who is accused of terrorism, in whose case there is no presumption of innocence, and no right of habæus corpus. Such individuals can be held in prison indefinitely without ever proceeding to trial, or even being formally accused of a crime.

When I say, “How sad …”, I mean that phrase quite literally. The ethical degeneration of the U.S.A. in the aftermath of 9/11 is arguably the saddest geo-political development of my lifetime.

I remain hopeful that President Obama will undo the offenses against human rights committed by his predecessor in the office. Obama has made progress, but only on certain fronts. He has a long way to go yet, to undo the damage and blot out the stain on the U.S.A.’s reputation as a civilized, just nation.

28 Comments (+add yours?)

  1. jonolan
    Dec 06, 2009 @ 20:52:30 sad it is that we treat terrorists like what they are instead of as mere criminals. Well…sad for the terrorists and the traitors who support them at least.


  2. Stephen
    Dec 06, 2009 @ 21:17:50

    • Jonolan:

    But how do you know they are terrorists? They are accused, yes. Suspected, yes. But in fact, many of the inmates of Guantanamo are innocent:

    Many detainees locked up at Guantanamo were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday.

    “There are still innocent people there,” Lawrence B. Wilkerson, a Republican who was chief of staff to then-Secretary of State Colin Powell, told The Associated Press. “Some have been there six or seven years.”

    Wilkerson, who first made the assertions in an Internet posting on Tuesday, told the AP he learned from briefings and by communicating with military commanders that the U.S. soon realized many Guantanamo detainees were innocent but nevertheless held them in hopes they could provide information for a “mosaic” of intelligence.

    That’s a former Bush Administration official speaking, as reported by FOX news — just so you won’t assume I’m quoting a biased source.

    Not everyone who is accused is guilty. That’s why the presumption of innocence is such an important legal doctrine. And the concept of habæus corpus, likewise.

    I don’t support terrorists. I do, however, support innocent people who are accused of crimes they did not commit, but are being held indefinitely in a legal limbo by the American government.


  3. jonolan
    Dec 07, 2009 @ 06:23:06

    Welcome to war then, Steven. It doesn’t – and can’t – operate like a criminal courts proceeding.


  4. Stephen
    Dec 07, 2009 @ 10:08:21

    Let me get this straight. The U.S. government knows there are innocent people detained at Guantanamo Bay, yet refuses to release them, and that’s OK with you?

    I didn’t know this sort of thing was within the rules of engagement in a time of war. I understand that innocent bystanders sometimes come to inadvertant harm. “You can’t make an omelet without breaking a few eggs” is one (heartless) way of looking at it.

    But I didn’t know it was OK to knowingly harm innocent people. That’s one of the areas where I’m still waiting for Obama to distinguish himself from Dubya.

    That’s the thing about human rights. Everyone is entitled to them — not just “us”, but “them”, too.

    However, I get the impression you don’t give a rat’s ass what happens to “them”. Who cares if they’re innocent? Lock ’em up and throw away the key, if it serves our interests.


    • jonolan
      Dec 07, 2009 @ 10:27:18

      You just don’t get it. You keep trying to apply civilian sensibilities to a wartime effort.

      There is no habæus corpus involved because there’s no need to bring them to trial. Their enemy threats, not mere criminals. The closest they are to criminals is illegal combatants and therefor subject to summary military justice, not civilian justice.

      As for those supposedly innocent people at Gitmo, I have some doubts of that but it could be the case. But what to do with them becomes the question. America has hard a hard time finding nations to take many of these people even when we wanted to release them.


      • Zayna
        Dec 07, 2009 @ 16:13:23

        What’s wrong with trying to universally apply civilian sensibilities even during wartime?

        That prisoners who are known to be innocent are still being kept behind bars is met by you with doubt makes you appear misguided. Add to that your retort that “what to do with them becomes the question” just makes you appear childish.

        What to do with innocent people unjustly imprisoned is simple, let them go.

        I think you are the one who just doesn’t get it.

      • jonolan
        Dec 07, 2009 @ 19:02:24

        Oh, Zayna,really? How many people falsely profess their innocence? How many people are acquitted solely because they were unable of being proven guilty by a flawed prosecution?

        And then what do we do with those we’ve decided are,in fact, innocent of any crime or threat that we care about when no nation will take them?

        And what of the ones who are threats to Americans but haven’t committed any “crime” beyond being an illegally un-uniformed – yes,that’s sort of a crime – enemy soldier in a war with no fixed victory conditions?

        So I’m the one looking appearing childish and misguided?

  5. aaron
    Dec 07, 2009 @ 13:34:49

    Yes it’s sad Stephen — compare what Harper said to the rank hypocrisy of Secretary of State Clinton said to China (, apparently unaware of the irony. As you know, I don’t share your level of optimism for Obama in this area — he’s had several opportunities to repudiate a number of Bush policies tied to habeus/torture/trials, and every time he has either endorsed them or even attempted to extend them. Most recently, as part of the defense for holding trials for Khalid Sheikh Mohammed and certain others (but not others — e.g.,, Attorney General Holder has argued that the Obama Administration would still detain these individuals even if they were acquitted —!!


  6. Bill
    Dec 08, 2009 @ 01:31:47

    Jonolan you are not “childish and misguided” just ignorant of the topic on which you are ranting. If you really knew anything about the laws around warfare you would know that law does apply to war. The Geneva Conventions of 1949 are still very relevant today. When things go bad during war even the US will drag them out. These conventions are designed to limit the barbarity of war and protect people who do not take part in the fighting (the innocent). The Geneva conventions are part of International humanitarian law IHL. All this screwing around with the terms war and combatant was so the US could get around the rule of law. IHL is only be applied to war. The US is bad at following IHL always has been Take Vietnam for example If a conflict is called a police action or some other such fictitious name then IHL does not apply. If an enemy is called an unlawful combatant then IHL does not apply/. The reason that the US calls these detainees unlawful combatants is because if they are Prisoners of War POW’s by IHL when the war is over they MUST be released.That said Knut Dörmann, head of the ICRC’s Legal Division states that “terrorist acts committed outside of armed conflict must be addressed by means of domestic or international law enforcement” There is no way around it the rule of Law always applies.


  7. Bill
    Dec 08, 2009 @ 01:35:59

    Just so you know the US was a signatory on the conventions and remains so that is why all the legal finagling over terms as I pointed out. Otherwise they would not both.


  8. Bill
    Dec 08, 2009 @ 01:48:39

    Sorry meant to say ” would not bother”


  9. jonolan
    Dec 08, 2009 @ 06:21:47


    I’m quite well-versed in the laws and treaties in question. What you’re choosing to ignore is that I spoke only against applying civilian laws to a military situation.

    Of course the terrorists aren’t protected by the Geneva Convention because their own actions played them outside of its protections. But, even it were applicable, the war isn’t over since it’s not the sort of war with a fixed end-date or victory conditions.

    But none of this really matters, despite all the wrangling we might engage in over law and jurisdiction. It comes down to who you choose to side with – America or her enemies, both the terrorists and their supporters in the UN who want to reduce America’s sovereignty and power.


  10. Stephen
    Dec 08, 2009 @ 11:37:28

    “Of course the terrorists aren’t protected by the Geneva Convention.”

    here you repeat the same error that I called you on in my first comment. We are talking about suspected terrorists. That’s a crucial distinction.

    It is incumbant upon the U.S. government to demonstrate that it has reasonable grounds to detain people. Most of the detainees were not apprehended directly by US troops. They were handed over by third parties, in a process not far removed from the Salem witch hunt. There’s no sound basis on which to presume their guilt.

    I can’t emphasize this point too strongly: don’t elide the distinction between terrorists and suspected terrorists.

    “But none of this really matters, despite all the wrangling we might engage in over law and jurisdiction. It comes down to who you choose to side with – America or her enemies, both the terrorists and their supporters in the UN who want to reduce America’s sovereignty and power.”

    Don’t present us with your false dichotomies. I don’t want to reduce America’s power. I do want America to exercise its sovereignty in a responsible, moral way.

    And I’m not supporting terrorists. I am supporting human beings. This is a very old shell game: if you set out to strip people of their human rights and dignity (e.g. slaves) it is first necessary to dehumanize them.

    Suspected terrorists are human beings. The U.S. government needs to treat them as such. That includes not torturing them; and it includes releasing people whom we know to be innocent.

    The smartest thing anyone has said in this thread was stated by Zayna. It’s obvious what you do with innocent detainees: you release them.

    In response, you raise a logistical objection. It is incumbant upon the US government to work out the logistics. The USA created Guantanamo; the USA is responsible to clean up its mess.


  11. jonolan
    Dec 08, 2009 @ 12:55:43

    No; proven or suspected makes no difference. This isn’t a matter of prosecution. This is a matter of war and security. Any enemy or perceived foreign threat to a war effort can be detained until such time as hostilities are ended.

    You are the one continuing to make the mistake of treating this situation as one governed by civilian law.

    And don’t bother trying to drag torture into it. I never said word one about it.


  12. Bill
    Dec 08, 2009 @ 13:42:27

    If as you say “You are the one continuing to make the mistake of treating this situation as one governed by civilian law.” then this is war and the combatants are POW’s thus they cannot be tried in a civilian court. But if they are unlawful combatants then they have to be tried by law. The US specifically chose the term unlawful combatant just so they could bring these terrorist to trial. Did you miss the statement by Knut Dörmann, head of the ICRC’s Legal Division states that “terrorist acts committed outside of armed conflict must be addressed by means of domestic or international law enforcement” Unless they change the term to POW they can’t by IHL hold detaimnees indefinitely. The Geneva conventions were created assuming war had a definite begining and end not this never ending nonsense that is going on now.

    If you were “quite well-versed in the laws and treaties in question.” you would see that but as Stephen pointed out you seem to want to present your argument in such a way as to assume your right presenting a false dichotomy were we are force to accept one of two equally false positions which does not work, your argument is political not rational. Stephen’s position is rational, and you don’t seem to be able to address that.

    Whether it is civilian law or military justice which includes IHL, law applies your argument is invalid. With out law warfare and civilian life boils down to a school yard brawl and if that is the way society is headed then I am going to head into the bush to became a hermit.


    • jonolan
      Dec 08, 2009 @ 16:06:01


      Yes I red the Red Cross’ opinion on the matter. So? And you keep referring to IHL, which is has no legal bearing upon America. None of the treaties we have sign were “self executing” and therefor are only as binding as our own laws make them.

      Since these terrorists are “illegal combatants” and rightfully not protected by the Geneva convention but are still bound by it (admittedly that’s legal but wrong) there under the purview of military justice and can also be legally held as long as there is an active military threat ongoing that they might be involved in.

      Anyway, I’m done here. This isn’t a discussion; it’s just a rant against America doing what is needful to protect itself from foreign enemies who follow no recognized rules of war.

      Go ahead and hope to bring these people to trial. Some American will be on a rooftop ready to bring them to justice…


  13. Stephen
    Dec 08, 2009 @ 16:23:22

    Perfect. If and when the US government brings these innocent men into a court of law, some American with a rifle is going to execute them in the name of “justice”.

    Are you paying attention to the flow of your own argument here?

    My objective is not to rant against America. My objective is to speak out for justice. If the US government is acting contrary to justice, don’t scapegoat me. Look in the mirror.


  14. Zayna
    Dec 10, 2009 @ 14:32:36

    To jonolan – First off, I apologize for resorting to name calling. You are obviously a very intelligent person who is passionate about their ideas. The main point of my comment was that “suspected” does not justify imprisoning innocent people.

    Directly to your reply, “How many people falsely profess their innocence? How many people are acquitted solely because they were unable of being proven guilty by a flawed prosecution?”

    I see this is where we see things completely differently. So because some falsely profess their innocence we should deny civil liberties to the actual innocent? Is that the point you are trying to make? I’m not being snotty, I’m genuinely curious.

    In my mind and heart, it is far worse to deny an innocent man his freedom because he was found guilty by flawed representation than it is to let a guilty man go free by the same means.

    If the system is going to be flawed, and we know it is, I’d rather it be in favour of the innocent. And if that makes me naive, that’s perfectly fine with me.


    • jonolan
      Dec 10, 2009 @ 16:54:54


      My response about people falsely claiming their innocence and the flaws of the prosecution was so a reply explaining my earlier, “I have my doubts” comments.

      In the specific matter of the criminal justice system, I agree with you as to erroring on the side of presuming innocence. I just don’t think that this is a matter for the criminal justice system at all.


      • Zayna
        Dec 10, 2009 @ 17:08:24

        But why should we have a separate justice system? Presumed innocent until proven guilty, although flawed, is the best system we have. Why should it be abandoned at all, especially in a time of war?

        It is when we are most vulnerable that we need most to cling to our convictions.

      • jonolan
        Dec 10, 2009 @ 20:23:56

        Because, Zayna, there’s a difference between detaining / containing a threat or enemy combatant and punishing someone for a crime.

        Example: we might bring a an enemy “war criminal” to to trial during a conflict but, even if he were acquitted under the law, he would still be kept a prisoner until the conflict had ended.

        It’s not having “a separate justice system.” It’s fighting a war.

  15. Stephen
    Dec 11, 2009 @ 10:27:41

    The problem is, the scenario is not what you seem to suppose here. I can see the logic of your position if I picture WWII in my mind, with their troops shooting from their trenches at our troops hunkered down in our trenches. And then our soldiers manage to overwhelm a bunch of their soldiers, who are correctly characterized as enemy combatants.

    Bit in this case, you may have some Afgan warlord handing some poor schmuk to US forces and saying, “This guy’s a terrorist.”. So your case is only as reliable as the word of that Afghan warlord.

    And then the US military takes that poor schmuk and interrogates him — less than gently — and he, in turn, alleges that some other local boy is likewise a terrorst. You see what I mean, that this is a long way from the WWII scenario where enemy combattants are clearly identified.

    In fact, you want to have it both ways. You claim that the Geneva Conventions don’t apply to the detainees because they weren’t wearing uniforms which would identify them as enemy combattants. But then you insist that the rules of war must be applied to them, not civilian norms.

    Which leaves us (a) with good reason to question their guilt in many cases, even if we set aside the insider testimony as to their innocence; and (b) no process by which the guilty might be separated from the innocent.

    That’s the ultimate issue here. By what process do you propose that we separate the innocent from the guilty, so that the innocent might be released? It seems to me your position is, Let the guilty and the innocent rot together in Guantanamo until they are released by death.


  16. snaars
    Dec 22, 2009 @ 23:57:12

    Jonolan is a couple of plums short of a fruitcake.


  17. billarends
    Dec 23, 2009 @ 09:22:19

    Sounds like Snaars is in the holiday spirit 😉 or has been into the holiday spirit 😉

    That said I concur. To paraphrase what I am am reading in Jonolan’s responses, he does not care if they are innocent and justice does not apply as this is war and laws do not apply to war even those that the US signed on to because the US does not legally have to keep its word to other nations? You know he might be right. At least he might be right that this is the way the US has in the past thought. It does seem that the new administration is trying to at least look like they want to change this. I just wish they would get on it soon.


  18. Zayna
    Feb 02, 2010 @ 15:44:17

    Missing you and your posts
    Checking often

    Wondering why you’re not here

    When what you have to say
    I’ve found relevant and thought it more

    I miss your take on things
    I have been inclined to ignore

    Wondering why you’re not here

    And hoping you are well
    Hoping that when you return you’ll have lots to tell


  19. westwood
    Feb 12, 2010 @ 12:59:18

    Do you think this would also apply to Harper’s decision to prorogue parliament (again)?


  20. Stephen
    Feb 13, 2010 @ 08:04:11

    • Hi, Zayna:
    All is well with me — aside from a protracted struggle with asthma, which has left me a little discouraged. I’ve just lost the motivation, after nearly five years of blogging. I can always think of worthy topics, but finding the time and the energy to write them up is a challenge.

    So I’m on hiatus until the urge to write overwhelms me. Who knows, that might happen about the time that the nice weather returns and my asthma departs.

    Thanks for honoring me with a poem!

    • Westwood:
    Thanks for visiting the blog. I feel sheepish that I haven’t posted anything more current.

    I find the Prime Minister’s hypocrisy hard to take. He came into office promising transparency, but he has been downright Machiavellian in shutting off the flow of information. Prorogation is of a piece with the bigger picture.

    I wouldn’t call it a violation of the rule of law. He’s within his Constitutional prerogative. If there are any consequences, they will be political rather than legal.

    And that’s the most encouraging development. Prime Minister is paying a political price, at least in the short term.


  21. Zayna
    Feb 23, 2010 @ 16:47:16

    Well, first and foremost I wish you good health and hope that with the nicer weather your asthma clears up.

    And thanks for being honoured by my poem. That means a lot to me.

    Well, hiatus or what…I hope you don’t mind that I keep you on my blogroll and check in every now and again.


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