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.
I both agree and disagree with the above essay, though mostly I disagree. For now, I'm going to confine my comments to the four points at the end of the essay. First, I agree with the suggestion that the US owes detainees a duty to aggressively pursue evidence to convict them. Unfortunately, I don't see it happening, at least not under the Bush Administration, for the following reason. If the detainee is already in prison, and the US has no higher authority that will force it to release the detainee absent a trial, then the US has no real incentive to aggressively pursue evidence for a trail, even if it might have a moral duty to do so. To the contrary, the US might be highly motivated to NOT pursue evidence for a trial, because a failure to find such evidence (despite an aggressive attempt to do so) would tend to undermine the US's decision to continue imprisoning the detainee.
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.
"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 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.
I don't agree with the entireity of what you had to say in this blog, but I do agree with analyzing the pragmatics of GB over the morals or ideology. Morals have a vast subjective wiggle-room that make such arguements easy to ignore on the part of many Americans. But looking at GB logically, we do not have a signifigant enough risk to deny the right to a fair trial (looking at the track record of many detainees) , torture historically and psychologically does NOT result in reliable or useful information, and GB violates international law regarding the status of prisoners of war*.
*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.
Thanks for all the views. To take grumpypilgrim first, in your first four paragraphs you took each of my points at the end of my blog and explained why they are impractical. I entirely agree with you!! My blog was exclusively focused on the moral arguments. It was not intended to say what I think will actually happen in reality. I mad that clear in my second paragraph. But yes, I could not agree more with your implement ability points, although they were never in dispute.
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.
Erika,
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.
I want to build on Jake's point about "a nation in a state of emergency having a duty to safeguard the security of its citizens." The American invasion of Iraq has demonstrated that expressions such as "state of emergency," "safeguard," and "security of its citizens" are phrases that have VERY ambiguous meanings when connected to real world events. For example, a "state of emergency" can be based on evidence that is faulty, misleading, over-sold and even non-existent. "Safeguard" can mean military actions that: are wholly disproportionate to the public benefits, actually increase threats against the nation, and are so costly that they hamper the nation's ability to fight future threats. "Security of its citizens" can mean virtually anything anyone wants it to mean, and can even be twisted into different meanings if the first meaning turns out later to be specious.
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.
Is waterboarding torture? Yes, and no.
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.