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April 21, 2004

Is Gitmo the U.S.?

Even a daunting question for the legal scholars, this is a perplexing one for the rest of us. Some legal fiction has been created which says that a US Embassy in a foreign country is as if it was not, which is to say on US soil and thus subject only to the laws of the United States. Somehow this kind of applies to US military bases, and presumeably the brigs within. Gitmo seems to be to me exactly the case of a brig within a US military base, subject to the laws of the US.

But these days NAFTA tribunals have established that even Supreme Court decisions may be subject to further review. I think the American people ultimately will not have it, and I imagine many judges flipping their wigs at the thought of a reversal of their decisions by some extra-territorial court.

Yet these days, we face disintermediation of national boundaries via technology and other modern developments. What exactly is an armed subcontractor of a multinational corporation in an occupied territory? Other than the obvious, that he is a goner in the hands of radical jihadists, what are his rights to trial? This is the sort of question we are faced with as we try to accomodate our legal system to the kind of ventures into imperialism which we find ourselves.

Allow me to remind you that I am an imperialist and that America should endeavor mightily to be the proper kind of empire. Consequently we should employ the right kind of imperial tribunal in this context lest we become the Pontius Pilates of the future. How is unclear but why is not. We simply cannot extend the rights of citizens to those murky persons. The context and circumstances of their arrest is more important than than the legal fictions of our patches of sovereignty on foreign soil.

I hope that we come to some better understanding that the forces of international law come from the power of nations and not the conveniences of legalese. International courts have quite a long evolution ahead of them and we should not be so quick to defer to their short list of precedences. Treaties are more durable and have a longer history. So let us not be so quick to push everything into the purview of domestic courts, the laws of war are sufficient.

Posted by mbowen at April 21, 2004 09:44 AM

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Posted by: srhodes at April 23, 2004 10:28 PM