Yes, if you are the one on the waterboard.

No, if you are the one making rules about torture, as somebody (a powerful leader) who has very little chance of every being put on a waterboard.

Because the above terms are all very ambiguous, I would answer Jake’s question (”…[At] what point would the risk become significant enough to justify taking the (admittedly drastic) action of denying people right to fair trial?”) as follows: a responsible government would rely on a *meaningful separation of powers* to provide a check-and-balance on its decisions about what is just and what is unjust. If a president or a single political party can dictate (rather than debate) government policy, then they will be able to say in public that they are “protecting the security of our citizens” while, in private, they are bankrupting both the freedom and the public treasury of those same citizens.

In other words, as Jake’s question highlights, the threat to a nation’s security and way of life doesn’t only come from outside its borders; it can also come from self-serving bureaucrats who seek to increase their own power and material wealth by manipulating and exploiting public trust.

i am not sure that it is a case of pragmatism versus morality. surely, a nation in a state of emergency has a moral duty to safeguard the security of its citizens. it also has a moral duty to safeguard the right to a fair trial. it seems to me to be two moral demands in tension with each other.

perhaps today there is not a significant enough risk, but at what point would the risk become significant enough to justify taking the (admittedly drastic) action of denying people right to fair trial?

I am not sure how to make such a decision. Perhaps it is not possible to have an objective test. However, I am sure that Utilitarian principles will need to weigh heavily into the equation.

In your second point, I agree with you also that times of national emergency give the executive much larger powers than usual. In law we can see how the judiciary (I only know uk law on this point) becomes very scared of strictly implementing the rule of law. The view is that, while a strong and independent judiciary is a very good thing for society, in times of emergency, it must take a back room role. I should add that there have also been occasions where judges have put their foot down and claimed that they will not stand aside where there is no genuine national emergency…. So while your fear is not unreasonable about Bush becoming too powerful, it is, to a degree, unavoidable.

I agree with your third point too. I was thinking about this while writing my blog. Eventually, when the national threat becomes so large, people will start being thrown into GB for increasingly arbitrary reasons. Eventually, there will be the Orwellian state you speak of. This reminds me of the McCarthy era when the US was so petrified of communism that people were indeed being rather arbitrarily imprisoned!! Surely, the eventual result would be either a revolution or a blatant dictator regime that was powerful enough to prevent such a revolution?

In conclusion, I actually agree with all your points but I fail to see how they disagree with any of mine. The thrust of my blog was the claim that sometimes even our most cherished rights (like fair trial) need to be compromised to facilitate or alleviate the danger of a situation within which a society may find itself. Such a compromise must be determined by balancing fairly the costs of one against the other… that is all.

*On the status of GB prisoners, America claims that GB detainees do not qualify as prisoners of war under the Geneva convention because they do not belong to a nation’s army, and hence do not require POW treatment. But the Geneva convention also states that any prisoner with a “questionable” status deserves POW treatment too. Since the argument consists of basically the US vs. Everyone else, you could definitely say these prisoners at least have “questionable” status, if not outright POW.

I agree with this statement wholeheartedly, because, as I read your blog, I kept thinking of the very few proven terrorists the US has ACTUALLY found.

As regards the second point, again it sounds good to say detainees should be released if evidence is lacking, but again it means little unless it can be enforced. It also means little without a clear timeframe within which the evidence must be gathered. This is why, in civilian court at least, people can only be held without evidence for only a few days.

The third point — that detainees should be treated well while in custody — again sounds fine in principle, but when the President of the United States, who claims to be acting under his powers as Commander in Chief (powers that, in his mind, supercede both US law and international moral standards), creates his own private prison system that is separate from BOTH American civilian AND military court systems, exactly who is going to ensure that detainees are treated with dignity? The President has even prevented the International Red Cross from inspecting prisoners held at GB.

Finally, the fourth point — compensating detainees for their imprisonment — is likewise problematic, for the same reasons mentioned above.

As I see things, the problem with defending places like GB, is two-fold. First, if the US president behaves as if he is not bound by ANY domestic or international law, and if the US Congress sits on its hands and does nothing, and if the American people are not outraged by the behavior, then the US president basically becomes a dictator with what amounts to absolute power (at least until the next election…though, as we have seen, even that can be manipulated). As history has proven many, many times, such absolute power is both extremely dangerous and a very slippery slope.

The second problem is that we are not talking about a war against a clearly defined enemy. Fighting the uniformed Nazis who invaded France in WWII was one thing. Fighting “terrorism,” where virtually anyone on the planet (including Americans living in the US) can be branded a “terrorist” and arbitrarily thrown in prison — for any length of time, without any evidence and without any trial — is something utterly and completely different. Furthermore, when someone can be branded a “terrorist” even BEFORE they have committed any terrorist act, the stage is set for imprisoning virtually anyone, for any reason. Furthermore, WHO IS TO DECIDE whether a given individual is a “terrorist” or not, and WHAT IS THE CHECK ON THEIR AUTHORITY? Obviously, anyone who can arbitrarily label anyone they choose a “terrorist” and toss them into prison would also have virtually unlimited power. And what do we have when many people, who all report directly to the US president, have such power?

In sum, what do we have when a US president has his own private prison system that is overseen by no civilian or military court, coupled with his own army of people able to brand anyone a “terrorist?” It doesn’t take much stretching of the imagination to see that a “war on terrorism” coupled with a prison system like GB, is one great big step toward an Orwellian totalitarian state.

Furthermore, we now know that this US president has been illegally wiretapping US citizens and secretly monitoring call records for every telephone in America, and gathering God-only-knows what other information about US cititzens. Isn’t it about time Americans should say enough is enough?

This is mainly why I disagree with the above essay. While there might be perfectly legitimate reasons for a government to trample on some peoples’ civil rights, there are, unquestionably, ways to do so that are far more legitimate than the ones employed by the Bush Administration.

Bottom line: there is no reason to believe that the US must have prisons like GB to “win” (whatever that means) the so-called “war on terrorism,” but there are many, many reasons to know for certain that such prisons are both illegal and immoral.