Culmination of Detainee Thoughts III: The Paradox

The paradox is this: if anyone is guaranteed full judicial process and we cannot adequately differentiate between those who are guaranteed it and those who are not without that judicial process, then we must give full judicial process to everyone. At least, this would be a paradox if we care much more about protecting the rights of those who are due full process than about denying the others process. If we care somewhat about denying process, for retributive or military reasons, we can simply give the maximal due process consistent with that goal. Yet if we claim that even this reduced process is sufficient to differentiate between the lawful and unlawful enemy combatants, then why do POWs need more process? This involves acknowledging that any trial process is necessarily imperfect and allows for some margin of error. The question is how much error we are willing to tolerate.

If we care much more about denying process, then we can easily resolve the paradox by simply ramping up process slightly across the board in order to weed out a few of the most easily differentiable cases. In this case, we are willing to tolerate a wide error margin.

A corollary result is that the Geneva Conventions cannot easily deny their due process protections to violators. Mixed in amongst civilians whose liberties we want to protect - perhaps especially in wartime - they must be given equal judicial process. Of course, once they are adequately determined to be violators, then the Conventions can retributively (or out of military necessity) deny them some rights - but judicial process is part of that determination and thus not subject to such denial.