The Debate over the Detainees

While several developments have taken place since this debate aired, this video is still helpful in understanding the underlying debate in regards to viewing military detainees as enemy combatants or prisoners of war. If they fall under the latter category, then they should be accorded Geneva Convention rights.

The 3rd Geneva Convention has a four pronged test to determine whether a person deserves its protections. If he meets these criterion, then he is prisoner of war:

1) "commanded by a person responsible for his subordinates" i.e. he must be an agent of a state.
2) "a fixed, distinctive sign recognizable at a distance, if not a uniform than something to set them apart from the civilian population."
3) “The members of the militia must carry their arms openly”
4) "in accordance with the laws and customs of war" e.g. he does not directly target non-combatants

It looks like Al Qaeda detainees fail all 4 criterion, or at the very least, the last 3 and would not qualify for Geneva Convention rights; however, the Civil Libertarian’s counter is that the 3rd Geneva Convention states it is the responsibility of a competent authority to make this determination. There could be others in Guantanamo Bay who are entitled to such rights, and the way to determine this is to have a judicial proceeding of some kind.

That is a fair point. If there are innocents in Guantanamo Bay who have been mistakenly detained, then a proceeding could correct the mistake. The question then becomes what constitutes a proper judicial proceeding. It is interesting to hear that Erwin Chemerinsky, the Civil Libertarian in the video, thinks a Military Tribunal would be sufficient and in accord with a Geneva Conventions i.e. the proceeding could be as simple as “just two or three officers in the field who examine someone who's captured in the field.”

I say that is interesting because something very close to that occurred after this 2004 debate. Military Commissions were issued, but the Supreme Court, in Hamdan v. Rumsfield, ruled against them and said they, not the Tribunal, should hear the detainees’ cases.

President Bush responded by getting explicit Congressional authorization for the military tribunals in the Military Commissions Act of 2006. Congress added more protections for the detainees by amending the Act in 2009.

As I said in a previous post, Civil Libertarians see civil liberties as ABSOLUTE i.e. no or few restrictions during wartime. Now we see they also think they are UNIVERSAL: non-citizens are just as entitled to these rights as citizens. This is why they usually take the position (leaving aside Cherminsky’s approval of Military tribunals) that enemy combatants should be tried in civil, not military, trials. My reply is natural rights might be ABSOLUTE and UNIVERSAL, but civil rights, which are MAN-MADE, are not. They only apply to citizens and can be curbed.

This doesn’t mean the detainees should be ‘indefinitely imprisoned’ either because even non-citizens have natural rights which cannot be abridged; but that does not mean we are morally obligated to give them anything more than a hearing in front of a Military Commission. The Rights of the Declaration are guaranteed to ALL; however, the Constitution's rights are only for US.

He knows when you are sleeping...

In my previous post, I made an argument for why civil liberties may be curbed during wartime. It might be easier to see the merit in this argument if we placed the problem in a fictional context, allowing us to look at the problem with fresh eyes. The film I have in mind is Christopher Nolan’s Dark Knight. Like Andrew Klavan, I thought Nolan was commenting on the War on Terror e.g. terrorism, torture. The issue I want to focus on here, however, will be ‘privacy v. security’ debate and how it comes up in the film in at least three different scenes.

Scene 1: During dinner, Bruce Wayne, his date, Harvey Dent, and Rachel Dawes discuss whether it is legitimate to take extra legal means in order to secure a city’s safety. Dent, who is supposed to be THE good guy, offers the example of the Roman Empire which would give emergency powers to a Dictator for a period of six months. Dawes responds the last time they did that they ended up with Caesar. This conversation reveals the dilemma posed by the problem and that it does not have an easy solution.

Scene 2: Bruce Wayne is talking to Alfred about defeating the Joker, who is referred to as a terrorist several times in the film. He asks how Alfred captured a criminal who, like the Joker, did not seem to play by any of the rules which most enemies abide by. Alfred curtly replies, “We burned the forest down.” In other words, such a villain required taking measures that would be considered extreme under normal circumstances.

Scene 3: Batman is able to use cell phones to create images which would allow him to know what is going on throughout the city. Leaving aside how implausible this is, the point is he will know where Gotham residents are and what they are doing. This is, he believes, the only way he can defeat the Joker. Lucius Fox explicitly says this is immoral and that no one should have this much power. Notice Christopher Nolan pays his respect to the Civil Liberty position by having one of the film’s good guys make their case.

Batman acknowledges the problem and says this is why he does not want to be the only person using the program. Instead, Fox should manage it while he simply follows his directions. Moreover, he tells Fox to type in his name when he is finished, which will destroy the device. The program is supposed to be temporary; its existence is the result of the extraordinary situation they find themselves in.

To relate this to the previous post, Batman institutes the very safeguards which were mentioned before: oversight and expiration dates. Taken together this should alleviate the concerns raised by Civil Libertarians.

The Dark Knight was a critical and commercial success. Nolan’s ability to raise these types of questions in a subtle and thoughtful manner while not antagonizing either critics or the crowd is a testimony to his talent. It will be interesting to see where he goes from here.

Give me CIVIL liberty or give me Safety

Are Civil Liberties sacrosanct or do they contract or expand depending upon the circumstances (peacetime, wartime)? To say they are sacrosanct would mean they are inalienable, but the Declaration of Independence only uses that adjective to describe natural rights. Those rights come from a transcendent source which is why they are absolute. Civil Liberties, on the other hand, are given to us from the State and thus are man-made. Being man-made, they are susceptible to change.

It follows that during wartime, civil liberties could be restricted for some greater good, say National Security. But what if the restriction of our civil liberties would endanger our God given rights? Indeed, this is the argument the Founders made in the main body of the Declaration as they cited George III’s violations of their ‘chartered’ rights.

It is this latter argument that Civil Libertarians have been making since the Patriot Act has been passed and renewed. Watching the debate above, however, one wonders if their concerns have not been addressed, at least somewhat. Peter Robinson argues that each of the controversial provisions has a safeguard: 1) judicial oversight e.g. FISA Court 2) Legislative oversight e.g. regular reports to Congress 3) sunset provisions (automatic expiration dates).

For Civil Libertarians, that might not be enough. From both videos, it looks like the argument is that it is still too secretive and the Public needs to be in on this. At that point the debate turns on whether secrecy is a necessary quality in a government when dealing with an enemy.