Thursday, April 25, 2013

The Ivory Cubicle | The Question of Justice at Guantanamo Bay

Last week, the New York Times ran an op-ed by Guantanamo Bay prisoner Samir Naji al Hasan Moqbel, bringing to light a couple of questions posed concerning the operations of this controversial prison camp in Cuba. The first is one we’ve been asking for a while, is it ethical for the United States government to be holding prisoners at Guantanamo bay without charge and without trial? The second is whether or not it is ethical for the United States government to force feed prisoners on hunger strikes via containment chairs, IVs and feeding tubes.

As is to be expected, the blogosphere, twitterverse, and various other social media sites lit up with questions and opinions concerning the issue. Much of it concerned whether or not the government was obligated to extend Constitutional rights to non-citizens. As a friend of mine asked on Facebook, “Are the Bill of Rights fundamental? If so, should the American government recognize them even for non-citizens?”

The answer requires looking beyond the framework of our Constitutional government to a basic question of human dignity. After all, the Bill of Rights is not just because it is a part of American government. It is a part of American government because it is just, and our founding fathers had enough sense to recognize it. So the question isn’t really “are prisoners entitled to the same rights as American citizens?” Rather, we ought to be asking “is it just to hold men captive without charge or trial?”

But there’s another layer of the onion to peel back. Typically, we’ve justified holding prisoners at Guantanamo Bay because they’re enemy combatants. Theoretically, enemy combatants don’t require a trial because they were apprehended in the act of waging warfare against the United States. Rather than being brought before a just legal system, they can be simply held as prisoners of war until the end of a conflict.

The question, however, is what kind of conflict are we fighting? We’re not fighting a conventional war. The prisoners we take are not obviously uniformed, and it’s often unclear whether they were even engaged in acts of violence. Furthermore, there is no clear objective to this war (the eradication of terror is not a clear objective because it can never be accomplished this side of heaven), so there is no idea when the conflict will end and the prisoners will be released (as POWs would). Some of the current prisoners have been held for 12 years already.

Once we phrase it that way, the answer becomes obvious. Due process of law is enshrined in our American legal system because we believe that if a person’s guilt is not clear, they should not be deprived of liberty without first being convicted before a just court of law. Once the question is answered, we are bound by justice to rectify the situation.

Posted by Nick Barden


  1. Good summary. Part of the problem, though, is that there are more classifications than just the citizen/non-citizen one. For example, non-citizens within the country are still protected by the bill of rights. There is something special about being on US territory, which is part of the reason Guantanamo, and not a domestic location, was chosen to house the detainees.

    Also, while not afforded the same due process rights as domestic criminals, the Guantanamo detainees are subject to an annual review.

    The question regarding the application of the Bill of Rights is also interesting. I guess we have to decide whether we are Wilsonian or Burkean on that one.

  2. Your piece is thoughtful and well-written, Mr. Barden; however, I must respectfully disagree with you.

    Since the purpose of the government as an institution is to exclusively protect the rights of its citizens, the U.S. government has no obligation to recognize or protect the rights of any foreign national, regardless if they have any or not.

    Even if they do have any, it's arguable that they lose those rights once they begin conspiring against the United States.

    Whether the government has no obligation to protect the rights of foreign nationals, or the foreign nationals have lost their rights by engaging in terrorism, the detention of foreign nationals involved in terrorism at Guantanamo Bay is a perfectly ethical action, as it does not afford rights to those who have none, and it protects the rights of those who do, namely us, the citizens of the United States, and our right to life which the government has an obligation to protect.

  3. Nicholas, thanks for the added information. I guess I'm not even sure I'd go so far as to say we ought to afford them the same rights as non-citizens. I'm trying to get past the question of the Bill of Rights to a more objective question of justice.

    Brutus, I'm a bit concerned about that theory for government. Is it just to do ANYTHING as long as it protects the interests of the citizens of the country? Are there no external restraints upon governments? Because that theory that is similar to the mentality that Germany (and many other European nations) had during World War I, and that didn't turn out terribly well. Surely governments possess SOME obligations to justice.

    I'm not sure its terribly helpful to discuss whether foreign nationals have "rights." The language of rights is very loaded, and usually shifts the focus away from what we are doing to some supposed criterion attached to the person being acted upon. I'd prefer to get back to the original question, "is it just to hold men captive without charge or trial?"

    That said, I think that we need to ensure that detainees actually WERE conspiring against the United States before we declare them guilty. It's disputed as to whether or not many prisoners were involved in al-Qaeda activities. Many weren't seized in combat. We need to determine their guilt before imprisoning them for a decade.

  4. Mr. Barden, what is your opinion on collateral damage?

    If we are to execute "justice" for foreign nationals accused of terrorism, to be consistent, we must also ensure that no collateral damage ever results from a U.S. military operation. If the holding of men accused of terrorism is unjust, is not the killing of innocent civilians even more unjust? If collateral damage can be justified, so also can our holding of foreign nationals accused of terrorism in Guantanamo Bay. The government has an obligation to the people who formed it to protect them from all threats no matter the cost, even at the loss of justice for non-citizens.

  5. Collateral damage is a euphemism devised to obscure what's really going on. It can mean everything from accidentally striking someone with friendly fire, accidentally killing an innocent civilian who is in the path of fire, cluster bombing high-civilian density areas in Kosovo, napalming jungles in Vietnam, or even nuclear weapons. I think that collateral damage always ought to be minimized, but war is a messy situation and sometimes friendly fire or civilian casualties occur.

    Christian ethics have historically preserved a distinction between intending something to happen and foreseeing that something will happen (it's called the doctrine of double effect). I think it's helpful in evaluating collateral damage. There are four conditions that must be met:

    1). The nature-of-the-act condition. The action must be either morally good or indifferent.
    2). The means-end condition. The bad effect must not be the means by which one achieves the good effect.
    3). The right-intention condition. The intention must be the achieving of only the good effect, with the bad effect being only an unintended side effect.
    4). The proportionality condition. The good effect must be at least equivalent in importance to the bad effect. (source: wiki)

    Insofar as "collateral damage" meets those four conditions, it's morally permissible. If it doesn't, it's not.

  6. I thought I had nothing else to share with you, Mr. Barden, but I found myself to be mistaken. In fact I do.

    So far we have examined this question in an abstract way. I told you of the fundamental purpose of government which excludes noncitizens from the protection of the same. Then I brought up collateral damage, noting that if it can even just sometimes be justified, so also can the holding of detainees in Guantanamo Bay be justified. Now I would like to look at this question from a more practical standpoint.

    You mentioned in your essay that this war we are fighting, this “War on Terror,” is not clearly defined. You are right. Politically correct politicians would have us believe that we are fighting disgruntled Walmart employees before they would ever say who we are really fighting. Truth be told, we are fighting an idea, one which commands its followers to lay down their lives in the service of the idea. You cannot win a fight against an idea. You also mentioned winning a war, and how, typically, prisoners of war were returned upon a war’s conclusion. Since you cannot win a fight against an idea, we have already lost. The United States has lost this fight the same way we lost the fight with communism. How can a country triumph over an idea? When we engage our enemies in this “War on Terror,” we are merely defending ourselves in a conflict where the outcome is a foregone conclusion. You asked, “What is the length of the war?” So long as the idea exists, so also will the war. We have entered an eternal war, only to end when the last trumpet sounds.

    You also noted that we have no clue who are enemies are in this war. You are very right. A man I encounter walking down the street could be plotting the death of millions. The clerk at the grocery store could be a jihadist. We simply don’t know.

    Due to the nature of this war and our enemy, for us to put detainees on trial is a dangerous thing to do. According to this report on National Review Online, as of September 20th, 2012, twenty-seven released detainees have returned to terror. You view a trial as being necessarily just; I do not. Criminals often escape justice in a court of law. Our enemies are fanatical to the point of losing their reason, and they look like civilians. The atrocities they commit are not petty crimes, but the mass murder of multitudes. Now we are back to my first objection. Being as this is an eternal war, and they noncitizens, are we obliged by God to give them justice? We are obliged to give them the same amount of justice they have given us, the “justice” we receive from them when our citizens’ limbs are ripped blown off by the bomb of a jihadist, and they are left in a pool of their own blood to writhe in agony.

  7. I apologize for the delay in replying (it's been finals week at college). I find the language of "eternal war" deeply troubling, especially if we've suspended normal ethics to engage in it. What you would tell us is that from now to the last trumpet, normative ethics do not apply, because everything we do can be cast as an act of self-defense. That's a dangerous ideology.

    Justice is simply giving to each man his due. In that sense, yes, the government is obliged by God to give them justice. If they are due time in prison, then we give them time in prison. The problem is that you haven't proven that they've actually committed any wrong. You're presuming guilt. One needs to determine what someone actually IS due before one can render it to him.

  8. That is perfectly fine, Mr. Barden.

    I would like to address several points you made in the order that you made them.

    How else would you describe our war with radical Islam other than "eternal"? Ever since the year 632 A.D. the followers of Mohammed have been on a quest to subdue all non-Muslims. They certainly will not be stopping for tea time.

    Not everything can be cast as self-defense. Only that which is genuinely the defense of one's nation from aggressors can be construed as an "act of self-defense." By all reason and laws of God, a nation cannot just invade another nation, unprovoked, and call it "self-defense."

    Both of our "ideologies" are dangerous, as both involve possibly hurting innocents. I want to indefinitely hold foreign nationals suspected of terrorism, guilty or no, to protect United States citizens. You want to try these foreign nationals in a court of law, let some proved "innocent" free, and thereby risk allowing one who is actually guilty to go and harm more United States citizens.

    I am not presuming guilt. I know the end of the last paragraph in my last post sounded as if did, but I did not mean it that way. I acknowledge that innocent men are likely being held, and they can justly be held to protect those whom the government is sworn to protect, namely United States citizens.

    Upon what biblical authority do you base your opinion that government is obliged by God to give foreign nationals justice? Generally verses such as Matthew 5:38-48 are used to justify even pacifism, but clearly these verses cannot apply to government. God holds government to a different standard than individuals. They are given prerogative to accomplish their God-given duty, the protection of their citizens.