by David Epstein
Just a few words about the Supreme Court ruling in the Guantanamo detainee case. It seems a simple point, but apparently it needs to be made out loud: it is wrong to throw people in jail without ever charging them with a crime, let alone bringing them to trial. It's just wrong. That's what the bad guys do -- those dictators and despots and old Soviet leaders do, not us. We're supposed to be the good guys, and much of our international power rests on the perception across the world that we stand for something more than doing whatever seems expedient to us at the moment.
Once you start with this premise, it becomes obvious that these rules apply to people other than American citizens. We don't take foreign travelers here in the US and throw them in jail for no reason either. If we think they've done something wrong then we charge them with crimes, let them see the evidence against them, give them a speedy trial and allow them to defend themselves. If the evidence happens to contain sensitive national security information, then the courts have well-developed procedures to balance defendants' rights and domestic security; see for instance this recent report on the subject. We don't just say "Well, we have what we consider to be really good evidence against you, but unfortunately we can't show it to you, so I'm afraid you'll have to rot in prison for six years or more until we figure out what to do."
And yet, John McCain, of all people, doesn't seem to get this. His reaction to the ruling was to say "We made it very clear these are enemy combatants. They have not, and never have been,
given the rights of citizens of this country."That just isn't the point -- it's about us, not them. Time and time again history teaches us that we are strong, respected and powerful when we abide by our basic principles, even when it seems hard to do at the time, and we weaken ourselves when we make up ad hoc reasons to violate these principles (just consider the fiasco of our most famous detainee episode: Japanese citizens during WWII).
It is not just sad that McCain doesn't understand this; it is disturbing and scary.
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Posted by: PUMAParty.Com | June 16, 2008 at 04:54 AM
P.S. Apologies ... my comment was meant to be addressed to Professor Epstein, not Professor Nacos.
Posted by: Eric Chen | June 14, 2008 at 09:53 PM
Professor Nacos,
We'll find out.
When 9/11 happened, which happened not as an isolated act, but just the most serious in a series of successful strikes targeting American and allied interests, we accepted that the pre-9/11 way of dealing with the terrorists - as a law enforcement issue - had failed. Therefore, our President, with our full support, declared war. We agreed then that a different kind of war on stateless globalized terrorists - not soldiers and far more than criminals - would require a new set of rules.
Since 9/11, we certainly have not been lawless nor unruly in the War on Terror. The debate has been over what laws and what rules are appropriate against a proven, dedicated, agile enemy who seemingly takes full advantage of his freedom from any such conceit or restraint. What legal protections should apply to non-American enemy combatants (not really analogous to the interned Americans of Japanese descent in WW2) who do not represent a nation and are captured in foreign lands and battlefields (not foreign travelers in the US) in this different kind of war? Should a civil legal standard be applied to this kind of war? Should a state vs state war-time legal standard be applied to this kind of war?
Most importantly, in a question we have not settled since our founding, is the protection of life - ie, security - a prerequisite for the protection of civil liberty? Or, do we uphold the highest sanctity of civil liberty at all costs, even if the cost is life?
We've known since 9/11 we would change during the war and it wouldn't be the first time in our American history. We, like our enemy, have embarked on a learning curve since then. We - chiefly our military - have evolved from our experiences in Afghanistan and Iraq, in Guantanamo Bay. The SCOTUS decision is a change, too, but it remains to be revealed whether it is a progressive adaptive evolutionary change ... or if it's reactionary.
I cherish our civil liberties, too, and I once gave a a very serious oath to defend the Constitution with my life. So, I hope you're right, Professor, and I agree this decision by SCOTUS is about us, not them.
But, the question nags me: What happens in war, indeed any kind of serious real-world contest between men, when one side fails to respect his opponent?
Posted by: Eric Chen | June 14, 2008 at 09:52 PM