The popular view here in the UK on Guantanamo Bay (GB) is that it is illegal and morally abhorrent that suspects of terrorism should be detained in awful conditions without either a formal charge or fair trial, for an indeterminate period of time. This is the view spread by the mass media and the view unquestioningly accepted by the masses.
Yesterday night, while discussing my full reasons for disagreeing with the above popular view, I was told that “international law just does not work that way”. Therefore, until I have the chance to read up on the legality of issues arising from GB, I will reserve my judgment. Thus, I will only deal below with the moral issues that arise from GB, and explain why they could be (but not necessarily are) morally defensible.
The right to a fair trial (and I think the obligation to charge a suspect can be subsumed underneath this) is the principle argument against GB that is circulating in almost all social circles in the UK, so it is this argument that I must primarily address.
The right to fair trial is not an absolute right that people should always be entitled to in every conceivable scenario, because every right (with the arguable exception of the right not to be tortured), needs to be balanced against other competing human rights of other individuals, and, perhaps, the interests of larger social entities (like the survival of a culture or a nation or religion).
If there is some large-scale emergency (like a national war, for example) it is very likely that both whole nations will be at risk, along with all the human rights (such as right to life) of the citizens of these nations. It does not take much utilitarian calculation to realise that, while unfortunate, it may be necessary to cause some suffering to a few people in order to protect the interests and survival of the larger group and/or nation.
In times of war, it is very common that a state curtails the exercise of free speech where, by exercising it, the individual will provide an advantage to the enemy (by reducing morale, giving away military secrets etc.). In some wars, people have even been conscripted into armies and their human right to life was thrown out the window when they were given the choice of running into no man’s land and certain death, or else being shot for insubordination by an officer for remaining in the trench. Therefore, the whole host of human rights have been (and will likely continue) to be sacrificed in the name of a putative greater good. With the right to a fair trial, I can’t see anything more special or sacred about this right than the others – if the situation demands that there is more harm than good in protecting this right, so be it.
While no reasonable person could doubt that such measures are unfortunate, my argument is that there must be some theoretical point at which a threat becomes so great that it becomes necessary to interfere with an individual’s human rights in order to alleviate this threat. When this point is reached, a difficult choice must be made between the lesser of two evils: security and stability vs. the compromise of the human rights of individuals. I do not even claim that the US has a serious enough threat to justify compromising the human rights of GB detainees in the way they currently do, I am simply making the point that such rights must be balanced against the social circumstances within which they operate – in this case, the social circumstance is a threat to US/world security.
To illustrate the above with the case of GB.
In GB there are 500-odd detainees who are not charged or convicted of any crime; they are merely suspected of being terrorists, connected with terrorists, being enemy combatants, or otherwise a threat to the state/world. My guess as to why they are not just tried and locked up already is that they simply lack sufficient evidence to convict them in a courtroom. Of course this would be unfair to any suspect who is innocent of the accusations against him… but, the damage inflicted on US/world if any suspect is released and happens to be a real terrorist must, at some point, outweigh the damage done to the individual who is innocent and is nevertheless incarcerated under false suspicions. As I say above, I am not suggesting that the current threat gives the US moral authority for its actions, just that there is a point where such authority is possible. In conclusion, I think that the debate on GB should be focused on whether the threat is great enough for the US to justify its actions to GB, and not (as the ‘debate’ currently stands) to say that what is happening at GB is always morally wrong, no matter what. I think that is a gross simplification of what is actually going on here.
But, I wonder if this kind of utilitarian argument can be used to justify flouting all and any of our human rights? What about torture, for example? Let’s say an individual knows military intelligence that could save the lives of 1,000 soldiers. Can it be justifiable to torture that individual in order to obtain this information, and thereby save those 1,000 lives? Maybe you would only do it to save the lives of your family and friends, or maybe you would not do it at all? Maybe, some rights are just so important that they should be protected as sacred no matter what could be gained or lost as a result…. also, we must remember that undermining human rights does not merely injure the individual involved, it also undermines a deeply rooted tradition upon which Western civilization (since the 18th century at least) is firmly founded — liberalism. If we threaten human rights, we also threaten the way of life, confidence, and wellbeing of every person who previously took the safeguard of his human rights as a given.
My final point is that if we accept the idea that the detainees of GB are being denied their right to a fair trial (and worse: denied this without their prior consent), it stands to reason that they should be adequately compensated for their loss.
In what way? Well:
Firstly, I think the US owes a duty to put a lot of effort into trying to find the evidence it would require to convict their suspect in a court of law.
Secondly, if it becomes clear that there is little prospect of ever finding the necessary evidence, it should be recognized that their initial suspicion was in fact wrong, and they should be released.
Thirdly, as the people detained are neither charged, tried, nor convicted of any crime, they should be accommodated with dignity and comfort during their detention. Clearly, this is far from what is actually the case at GB. Granted, there is no way to coerce the US into doing this, given its domination in world affairs, but this is a moral argument.
Fourthly, the detainees should be compensated for the loss of their right of free trial, regardless of whether they are later found to be guilty of being a terrorist/enemy combatant/whatever. This is because their rights are inherent and can not therefore be alienated based on whether they are guilty of a crime or not!!
So, there it is. Why and when it COULD be OK to detain people without trial (a la GB), and how it should be done differently than it is.
Please feel free to agree, disagree or otherwise critique my comments.