Exceptionalism--Civilians, etc.

A few posts ago, I introduced the topic of exceptionalism, and promised to follow up with examples. If there were any case to be made for American exceptionalism, it would surely be on the basis of a few of our supposed principles. A principle that we've paid quite a bit of lip service to is the rule of law.

One case that's come up lately that has crippled (at least the perception of) our allegiance to this principle is the no-law-zone at Guantanamo Bay. Those who have been paying attention can surely see many of the administration's prisoner policies as cases of exceptionalism. Here, it has a purely negative sense. The rule of law works by sorting agents and acts into different categories, and then applying the relevant rules to their respective categories, after having made (hopefully) impartial findings of fact. As the Supreme Court duly noted in its rebuke of administration arguments, the newly-coined "enemy combatant" designation functioned primarily to circumvent protections afforded by the Third Geneva Convention as well as our own Uniform Code of Military Justice. (See opinion here.)

This is a case of exceptionalism because it marks out a new category of actor in the context of a policy that is itself, legally speaking, restrained by the precedent of the Geneva Conventions and the UCMJ. The policy attempts, that is, to carve out a new class of war conduct over which those prior laws have no jurisdiction.

As I mentioned, these policies can often seem legitimate. In this case, the appearnce of legitimacy hung on the extent to which the court was willing to countenance the administration's argument that military tribunals and their peculiar extra-judiciary status was a legitimate exercise of constitutionally granted executive war powers. Of course, to accept this argument is to give the president a ready tool to avoid compliance with any given bit of law, domestic or international. So this gives us, if you will, a case of double-exceptionalism--the recognization of an exception to our governing laws and treatites in the case of the tribunals and their "enemy combatants," brought about by the prior exception of the executive from the class of those legislative and judicial actors constrained by those laws and treaties, and negatively, the exception of the enemy combatants from the standards of POW rights and remedies afforded to our enemies. The relevant (and absurd) domestic parallel would be to create a class of crime such that if committed, the accused would automatically cede, say, her right to a fair trial; absurd here, as in the case of enemy combatants, mainly because it is usually taken for granted that certain standards of due process are necessary to make any reliable factual determinations about the previous actions, and only later guilt or innocence, of the parties involved. It should go without saying that these niceties were precisely what the administration was hoping to avoid.

With the failure of this policy comes a renewed attempt to stratify our war-time categories. This time, in response to the fact that Lebanon's civilian death toll far outnumbers that of Israel, we find Alan Dershowitz arguing against the cogency of the traditional military/civilian contrast. (See this for useful commentary.)

We should, as a basic moral primer, ask ourselves whether his comments about civilian Lebanese fighters are any less applicable to our own side, lest we forget that the largest concentrated mercenary force assembled on the planet right now is employed by the Pentagon in Iraq. We should not need to be reminded that the majority of our mercenaries have families that are rather far-removed from the current fighting.