Thoughts on Detentions
One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous.
A good example is detentions at Gitmo. I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Interestingly, as I watch the Beeb this morning, Britain is having a similar debate. Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.
Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists. I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation: The individual rights we hold dear are our rights as human beings, NOT as citizens. They flow from our very existence, not from our government and not from the fact of our citizenship. In some ways, the government probably has less right to abuse non-citizens, not more).
Here is a test: If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone" (with the government getting to define both these terms), how abused would it have been in the past. My answer is "very much". Who would J. Edgar Hoover have detained? Would Martin Luther King have spent his life in jail, much like Nelson Mandela?
By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions). If anyone thinks they have seen a definitive analysis, please link it in the comments.
Posted on July 3, 2006 at 01:32 AM | Permalink
I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.
Tell John McCain that indefinite detention of combatants during a war is an "invented concept".
Detaining combatants during a war is something we do because otherwise they become combatants again. So we're keeping them out of the war without killing them; it's a lesser violation of their human rights.
Posted by: Charlie (Colorado) | Jul 3, 2006 7:26:09 AM
Yes, every country has taken prisoners in just about every war that's lasted long enough to (unless the policy was to "take no prisoners," which I think is a bad policy). That's not an "invented concept."
What was relatively recently "invented" (at least as far back as Napolean's invasion of Russia [see Pierre's trial in "War and Peace"], but probably earlier) was that those prisoners are not criminals and should not be charged with crimes, unless there's evidence they committed a crime, such as attacking civilians, espionage, burning farms, etc. When the left argues "look at how terrible Bush is, he's holding these guys without charging them with a crime" they are making it clear they don't know how this works. In a war, you hold whoever you captured, not because they are evil, not because you're punishing them, not because you want them to learn a lesson, but because you don't want them joining the fight. When the war is over, you let them go.
It's been like this for nearly 200 years already, if not longer. It's not a Bush invention.
Posted by: Max Lybbert | Jul 3, 2006 9:14:49 AM
I agree with underlying premise that humans have rights that flow from their mere existence, but in terms of
the effects of detaining people, this is a right which flows from gov't.
"Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists. I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation: The individual rights we hold dear are our rights as human beings, NOT as citizens. They flow from our very existence, not from our government and not from the fact of our citizenship. In some ways, the government probably has less right to abuse non-citizens, not more)."
The problem I see with this statement is that this 'right not to be detained indefinately' is NOT actually a 'right' that exists by nature.
The fact that I've captured you is unnatural and violates your right to be live freely.
So, I either captured you because you have violated my rights or I have captured you by
violating your rights. Either way, someone's human rights were violated.
Your rights end where mine begin, if you step over that line, then my actions can indeed violate yours in response.
For example, we both have the right to live, but if you come and try to stab me with a knife,
then my response can be to violate your right to life, because once you violate my rights to begin with, you have forfeited yours.
I have justifiably taken away your rights as a consequence of your initial actions, not my initial actions.
So, in fact, one role of gov't is to protect our civil liberties. Part of being civilized is to recognize people make mistakes and
to give them a chance to defend their existence (ie. maybe you weren't trying to stab me, but hunt an animal for food which was behind me).
This right to a fair and speedy trial is one that only exists because of gov't.
Without gov't, people would take the law into their own hands.
So, if you agree with the premise, that this right does in fact only exist because of gov't, then it's a right that would
only be recognized to the people for which this gov't protects. So, in regards to the detainees at Guantanomo, it serves
no purpose to knowingly hold innocent people. I have a hard time believing that a top ranking official woke up one day
and thought "hmm, i want to round up some arabs today and hold them without trial and make people think I'm torturing them"
Is it possible that there were innocent people captured (ie. they were in the wrong place at the wrong time), yes.
In my view, there is no argument to be made about these detainees right to judicial review. The govt's actions
are a justified consequence of what the detainees initially did.
The only right we should be discussing is the one of the initial detention. Was the detention initiated
as a response and therefore justified, or was the detention the initial action?
Posted by: Rob | Jul 5, 2006 1:17:17 PM
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