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Sacrificing rights: The defense of democracy vs. terrorism

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AlexGrant

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Hello,

I've lurked here for quite some time without directly contributing. Unfortunately, my first contribution comes only as a spark.

I'm wondering what some of the minds around here think about an argument such as that of Michael Ignatieff's on the sacrifice of rights in the name of security.

A specific article can be found here:

http://www.vigile.net/Lesser-Evils

But even if you can't be bothered to go through it, what are your general replies, in the case of security, to someone who firmly holds that massive terrorist attacks are well within the realm of possibility.

Thanks

EDIT: I realize that sacrifice is a very dangerous word to use around these parts! Feel free to comment on sacrifice in general is horrible, but that's not what I'm getting at.

Edited by AlexGrant
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I agree with Mr. Ignatieff on two counts:

1. There needs to be a balance between congressional/judicial oversight and the need for swift executive action(and in some other areas that are legitimately considered related to "civil liberties" - warrant-less wiretaps, preventive detention of American terror suspects etc.)

2. There is a real danger of a much bigger attack taking place on American soil, and many libertarians are downplaying it.

However, I don't see what the treatment of foreign, enemy combatants at Gitmo or elsewhere, has to do with civil liberties. We are at war, and the military's job is to win this war, not worry about the rights of the enemy. The enemy has no rights or liberties. What the CIA does on foreign soil, whether it' assassinations or rendition, does not fall under the jurisdiction of the judiciary: it is a matter to be handled by the executive, with some review by Congress.

In other words I strongly disagree with this phrase (from Ignatieff's article):

"Clearly, there need to be rules to govern detention, and the key rule — one that defines democracy itself — is that no one, citizen or otherwise, should be held without access to public review of his detention by independent judicial authorities. Where they are held, whether offshore or at home, should be immaterial. If they are detained by Americans, they are America’s responsibility, and basic due process standards should apply."

Sure, some standards should apply, but what those standards are does not concern the American public, or the judiciary. It concerns only the military, and the people in charge of the military: the President and select members of Congress (of the appropriate comities). And it most definitely has nothing to do with the issue we are discussing: civil liberties.

As you already hinted in your post, I disagree with the idea of sacrifice being necessary. In some cases, of extreme danger, we may trade some of our liberties in exchange for something more valuable: our lives. Any such trade should of course be temporary, if it is done via the legislature an expiration date should be placed on any law that is passed in this sense.

Also, our first instinct should not be to give up anything, but rather to inflict as much violence as it is necessary on the enemy abroad, in order to win the war as quickly as possible. Once this is done, we can talk about trading in some civil liberties, for a limited time, if it is absolutely necessary.

But this is all theoretical. In the real world, at the present time, I don't think further measures, beyond the Patriot Act, are necessary. Instead we should take more decisive action against our enemies and the countries that support them.

[edit]Also, I think the Patriot Act contains a lot of infringements that are not only unnecessary, but in fact useless as far as security is concerned.

Edited by Jake_Ellison
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I agree with Mr. Ignatieff on two counts:

1. There needs to be a balance between congressional/judicial oversight and the need for swift executive action(and in some other areas that are legitimately considered related to "civil liberties" - warrant-less wiretaps, preventive detention of American terror suspects etc.)

2. There is a real danger of a much bigger attack taking place on American soil, and many libertarians are downplaying it.

However, I don't see what the treatment of foreign, enemy combatants at Gitmo or elsewhere, has to do with civil liberties. We are at war, and the military's job is to win this war, not worry about the rights of the enemy. The enemy has no rights or liberties. What the CIA does on foreign soil, whether it' assassinations or rendition, does not fall under the jurisdiction of the judiciary: it is a matter to be handled by the executive, with some review by Congress.

In other words I strongly disagree with this phrase (from Ignatieff's article):

The problem with Gitmo is we don't know that these people are guilty. Plenty of people that still reside there are confirmed innocent of acts against America.

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" according to our traditional understanding of war, the only justified resort to war is a response to actual aggression. But those standards are outdated. They were conceived for wars against states and their armies, not for wars against terrorists and suicide bombers. Against this kind of enemy, everyone can see that instead of

waiting for terrorists to hit us, it makes sense to get our retaliation in first. The problem with pre-emption is keeping the president's war power under democratic control."

How do terrorists differ from states in how we think of pre-emptive war? Why would we be able to pre-emptively attack terrorists but not states if there is equal evidence of a threat?

Edited by AlexGrant
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The problem with Gitmo is we don't know that these people are guilty. Plenty of people that still reside there are confirmed innocent of acts against America.

Whatever. They've been picked up on the battlefield, and are being sorted out. I trust that the military will just let the harmless (or "innocent") ones go. However, I certainly don't expect them to keep me up to date with what they are doing there. My only expectation of them, and properly so, is that they win the war.

They should of course do that while remaining honorable, but that is something for them and their commanders to define and oversee. My responsibility is to pay for adequate training so that they can learn to be honorable. (If I believe they don't receive adequate training, I can write my congressman about that.) However honor is most certainly not something I(or the public) am qualified to judge them on, or even decide what it means.

That of course doesn't mean Abu Graib was perfectly fine in my book: those who committed despicable acts there were punished by the military itself. All I am saying is that Gitmo needs to be left up to the military (and the Commander in Chief) as well.

Edited by Jake_Ellison
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But even if you can't be bothered to go through it, what are your general replies, in the case of security, to someone who firmly holds that massive terrorist attacks are well within the realm of possibility.
The general principle is clear, that a proper government may not initiate force, but it may use retaliatory force for the purpose of protecting individual rights, and furthermore such force may properly be used against the "metaphysically innocent", provided that this is an instance of the objectively justified and objectively regulated use of force required for the government to satisfy its purpose in existing.

There is a second philosophical question -- a simple one, IMO -- regarding citizens vs. others: just because Americans have rights recognized under US law, should the rights of non-citizens be ignored; put alternatively, do non-citizens have rights? We may discover what SCOTUS says about the legal / Constitutional question soon, but the moral question is answered easily. Rights pertain to "man", not just "American citizens".

What remains is specific application of this principle to the facts. The proper question to be asking is whether certain uses of force are in compliance with objectively stated law and are indeed necessary for the government to correctly use retaliatory force. The very same principle are applicable to domestic criminal matters. When a crime is committed and someone's rights have been violated, the government must use the force necessary to bring the guilty party to justice. That means that when there is a sufficient evidence that some individual is responsible for the act, force can be used to hold them to account -- even though they have not yet been proven to be guilty. They may be arrested, fingerprints and DNA samples can be taken, they can be compelled to appear in court. Other people, who are not even suspected of being guilty of the crime, can properly be obligated to provide testimony, if there is reason to think that they have evidence that is material to the case.

There should be no specific exceptions to these principles depending on whether the local police, the FBI, the CIA, or the military are involved. The appearance of an exception is a consequence of differing facts -- the fact that religious terrorists dedicated to the destruction of western civilization are vastly more dangerous than order-taking regular Canadian soldiers invading Michigan or mafiosi hijacking truckloads of TVs. More extreme force in the former case is justified by the level of danger than an objective analysis of the facts proves they pose. A corollary is that it does not matter whether they are US citizens, British, or Afghani.

I disagree with Jake's statement that "what those standards are does not concern the American public, or the judiciary. It concerns only the military, and the people in charge of the military: the President and select members of Congress (of the appropriate comities)." I don't think it concerns the geneal public, but it does concern the judiciary. That is what it means to live in a society governed by law, not by men. The function of the judiciary is to look at the law and the facts, and determine whether the government's actions are in compliance with the law. There is and should be no "above the law" exception for any war, be it a war against Germany, a war against terrorism, a war against crime, drugs or poverty.

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" according to our traditional understanding of war, . But those standards are outdated. They were conceived for wars against states and their armies, not for wars against terrorists and suicide bombers. Against this kind of enemy, everyone can see that instead of

waiting for terrorists to hit us, it makes sense to get our retaliation in first. The problem with pre-emption is keeping the president's war power under democratic control."

How do terrorists differ from states in how we think of pre-emptive war? Why would we be able to pre-emptively attack terrorists but not states if there is equal evidence of a threat?

I disagree with the premise that "the only justified resort to war is a response to actual aggression", or with the idea that this is our traditional understanding of war. The US gov. always had the same mandate: to protect its citizens. The idea that in the past America only responded to threats after the fact is a ridiculously obvious distortion of history.

Of course in the case of Militant Islam and its supporters across the world, they already attacked us on 9/11, so preemptive war is not even an issue.

However, to answer your question fully, if hypothetically we found out that the IRA (or Northern Ireland for that matter:) is planning an attack against us (or just threatening, like bin Laden did in '96), we'd be perfectly justified in attacking them too, preemptively.

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Whatever. They've been picked up on the battlefield, and are being sorted out. I trust that the military will just let the harmless (or "innocent") ones go. However, I certainly don't expect them to keep me up to date with what they are doing there. My only expectation of them, and properly so, is that they win the war.

They should of course do that while remaining honorable, but that is something for them and their commanders to define and oversee. My responsibility is to pay for adequate training so that they can learn to be honorable. (If I believe they don't receive adequate training, I can write my congressman about that.) However honor is most certainly not something I(or the public) am qualified to judge them on, or even decide what it means.

That of course doesn't mean Abu Graib was perfectly fine in my book: those who committed despicable acts there were punished by the military itself. All I am saying is that Gitmo needs to be left up to the military (and the Commander in Chief) as well.

Do you honestly put that much faith into the military? I am not an anti-military person, but government has rarely been an agent of truth, and the treatment of people at Gitmo who have not been convicted of anything and have in many cases been proven innocent is a testimony to just how mismanaged the military can be. I don't have a problem with holding these people, but not for an indefinite amount of time with no habeas corpus.

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I disagree with Jake's statement that "what those standards are does not concern the American public, or the judiciary. It concerns only the military, and the people in charge of the military: the President and select members of Congress (of the appropriate comities)." I don't think it concerns the geneal public, but it does concern the judiciary. That is what it means to live in a society governed by law, not by men. The function of the judiciary is to look at the law and the facts, and determine whether the government's actions are in compliance with the law. There is and should be no "above the law" exception for any war, be it a war against Germany, a war against terrorism, a war against crime, drugs or poverty.

I agree with the principle you are stating here: there should be no "above the law" exception in any war. I should have said that in my response.

However, I might disagree with you on what the laws governing our military in war should be. I'd love to hear your opinion on that first: Should they be allowed to detain enemy combatants without a trial? (until the end of the war) Should they be allowed to assassinate enemy leaders wherever they may hide? Should they be allowed to interrogate prisoners through any means necessary in some cases? Should the commanders have all possible tactics of war available for use at their discretion? etc.

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In response to David:

"I don't think it concerns the geneal public, but it does concern the judiciary. That is what it means to live in a society governed by law,"

What would you reply to Ignatieff who would say that the courts are susceptible(edit sp.) to simply tagging along with the president; who would argue that the public does indeed need to know.

"For nearly two years, the courts deferred to the president's powers as commander in chief, refusing to deny him authority to designate American citizens ''enemy combatants'' and allowing him to imprison foreign combatants at Guantanamo beyond the reach of American courts."

Edited by AlexGrant
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Do you honestly put that much faith into the military? I am not an anti-military person, but government has rarely been an agent of truth, and the treatment of people at Gitmo who have not been convicted of anything and have in many cases been proven innocent is a testimony to just how mismanaged the military can be. I don't have a problem with holding these people, but not for an indefinite amount of time with no habeas corpus.

I don't necessarily have more faith than you in the military. (although I probably do:) However, I have a lot lower expectations of war.

I think war is a horrible thing, which causes huge amount of suffering, including a lot of collateral damage, and therefor should only be used as a last resort. It's just that in this case we had no choice: they hijacked civilian planes, knocked down buildings, killed three thousand people, and are currently aiming to destroy our way of life and impose theirs on us.

I like the way DavidOdden phrased it: "an extreme threat justifies extreme measures".

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the treatment of people at Gitmo who have not been convicted of anything and have in many cases been proven innocent

Are there people at Gitmo who have been 'proven innocent?' I thought the whole beef with Gitmo was that there were no trials, not that there were known innocents that were being held against their will. From what I understand, hundreds of inmates have been released over the years.

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What would you reply to Ignatieff who would say that the courts are susceptible(edit sp.) to simply tagging along with the president; who would argue that the public does indeed need to know.
This is a consequence of judicial passivism, i.e. the notion of "deference", which is a known problem. He's pointing to a problematic tendency with the judiciary which isn't specific to terrorist detentions. The problem isn't solved by laying bare all of our military secrets or hamstringing the government in its efforts to protect our rights. It is solved by eliminating the positivist strain in jurisprudence.
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However, I might disagree with you on what the laws governing our military in war should be. I'd love to hear your opinion on that first: Should they be allowed to detain enemy combatants without a trial? (until the end of the war)
This is actually a really sticky point, specifically because of the "end of the war" problem. In the good old days when men were men, we would actually declare that a state of war existed between the United States and some aggressor and then kick their asses, and this is even mentioned in the Constitution (not the ass part). However since WWII, we have not bothered to actually have a declared state of war, and have at best had congressional approvals (a quasi-declaration). The problem I see is, how would we ever know that the war on terror (or drugs) came to an end? I would like to see the "state of war" be brought within the confines of actual law as opposed to White House Press Office policy, and in the current context I'd say that a "war" includes any military action congressionally authorized following the War Powers Act. Anyhow, that said, yes.
Should they be allowed to assassinate enemy leaders wherever they may hide?
Yes, under a suitable understanding of "enemy" (aggressor leaders, not for example Putin who is definitively the enemy, but Russia has not yet crossed the line).
Should they be allowed to interrogate prisoners through any means necessary in some cases?
With emphasis on "necessary". The main consideration here is "how important is it to get the information?". For instance, it would not be necessary to get the cast of Hellraiser with chains and hooks to coerce Khalid Shaikh Mohammed into providing important information: much lesser force was sufficient.
Should the commanders have all possible tactics of war available for use at their discretion?
There is one "commander in chief", who IMO is the only one who has available all possible tactics. He authorizes other commanders below him to use some range of tactics. Definitely, a rogue sergeant should not have the authority to nuke Islamabad if he has not been given that authority by POTUS.
etc.
That looks like a blank check. But for example, the limits on what domestic cops can can do in ferretting out criminals don't apply on an actual battlefield, and any notions of requiring a warrant to kick in a door would be out of the question. Cops properly are investigated if they shoot a person: that should almost never happen in the military (except if you have miscreants of the Abu Ghraib ilk who decide it's cool to watch Iraqi heads explode).
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Should they be allowed to detain enemy combatants without a trial? (until the end of the war)

I don't think this question is fair in the context of Gitmo. The detainees there are part of a "war on terrorism", which is nonsense, so the "war" will never end.

Edited by FeatherFall
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I don't think this question is fair in the context of Gitmo. The detainees there are part of a "war on terrorism", which is nonsense, so the "war" will never end.

The war is against Islamic Terrorists. I don't think the enemy was properly identified, or that we are fighting the right way, but it is unfair to suggest that we're officially at war with a tactic.

We do have an enemy, and the war could end, if this enemy surrendered. Of course that won't happen if we keep up the current policies, but that doesn't mean the war is nonsense, it is in fact absolutely real. Gitmo is necessary, because the only alternative would be to try captured enemies in civilian courts, and hold them in civilian prisons. That's not a reasonable way to fight against fanatical suicide bombers and mass murderers. Plus, the detainees are not going to be held forever without a trial: everybody agrees that they should eventually be tried, there's only disagreement on the nature of these proceedings.

Suggesting that Bush wants to hold people forever, that's why he isn't willing to define the enemy and the war properly, is a bit much.

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Suggesting that Bush wants to hold people forever, that's why he isn't willing to define the enemy and the war properly, is a bit much.

I wasn't suggesting a motive. I was explaining why your question didn't apply.

The war is against Islamic Terrorists. I don't think the enemy was properly identified, or that we are fighting the right way, but it is unfair to suggest that we're officially at war with a tactic.

It is also unfair to say that we are officially at war with Islamic terrorists. In the absence of an officially declared enemy or clear standard of victory, you cannot have a cessation of conflict.

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But are they entitled to our rights when they take up arms against those very rights?

The point is that these people, a large percentage of the time, aren't guilty of this at all. That is why we need court cases. I'm all for being ruthless to the enemy, but not everyone in the range of our military IS an enemy. And unfortunately, after we release them, they DO become hostile to the U.S.

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The point is that these people, a large percentage of the time, aren't guilty of this at all. That is why we need court cases. I'm all for being ruthless to the enemy, but not everyone in the range of our military IS an enemy. And unfortunately, after we release them, they DO become hostile to the U.S.

Really? Well, they must be really special and different from the norm, because in WW2 we detained Japanese Americans, firebombed Japanese and German civilians in Tokyo and Dresden, pulverized their children in Hiroshima, and not one of them turned out to be hostile to America afterward, in fact they suddenly became as friendly as little puppies.

This theory that we are creating our own enemies by somehow wronging them is the most ridiculous and despicable I've heard, ever. The people responsible for any suffering because of our response to terrorism are those who initiated force, period. I don't care if the victims are babies or pregnant mothers, as long as the military is acting in good faith, to defend America, they should not be forced to walk on eggshells.

We are loosing the war as it is, can you imagine if they had to start collecting DNA samples into little plastic bags, and witness testimony form the neighbors, every time they capture someone on the battlefield?

Edited by Jake_Ellison
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I wasn't suggesting a motive. I was explaining why your question didn't apply.

It is also unfair to say that we are officially at war with Islamic terrorists. In the absence of an officially declared enemy or clear standard of victory, you cannot have a cessation of conflict.

I don't know what you're suggesting: If I were to look at your post and interpret it without assuming that you are on the US side in this, or even without considering that you are most likely an Objectivist, I would have to conclude that you are questioning the legitimacy of the American military taking prisoners in this conflict. However, I must consider the context of your post, so I am lost. Please clarify, what do you think the military should do instead of holding people at Gitmo, given the current political context? Are you suggesting issuing warrants and arresting them? (or rather waiting for them to surrender, since the military cannot act abroad without a formal declaration of war, which we don't have, as you just said)

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Really? Well, they must be really special and different from the norm, because in WW2 we detained Japanese Americans, firebombed Japanese and German civilians in Tokyo and Dresden, pulverized their children in Hiroshima, and not one of them turned out to be hostile to America afterward, in fact they suddenly became as friendly as little puppies.

This theory that we are creating our own enemies by somehow wronging them is the most ridiculous and despicable I've heard, ever. The people responsible for any suffering because of our response to terrorism are those who initiated force, period. I don't care if the victims are babies or pregnant mothers, as long as the military is acting in good faith, to defend America, they should not be forced to walk on eggshells.

We are loosing the war as it is, can you imagine if they had to start collecting DNA samples into little plastic bags, and witness testimony form the neighbors, every time they capture someone on the battlefield?

You are extremely naive if you don't think these actions caused hostility towards America. The war was over and people were tired of fighting, but that doesn't mean they didn't have animosity towards America. When the Queen of England visited Hamburg Germany, coincidentally on the anniversary of the bombings there, she came as close to being run out on a rail as a Queen reasonably can. The difference is that the Germans and Japanese (and Americans who were interned) were not in the habit of becoming suicide bombers.

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You are extremely naive if you don't think these actions caused hostility towards America. The war was over and people were tired of fighting, but that doesn't mean they didn't have animosity towards America. When the Queen of England visited Hamburg Germany, coincidentally on the anniversary of the bombings there, she came as close to being run out on a rail as a Queen reasonably can. The difference is that the Germans and Japanese (and Americans who were interned) were not in the habit of becoming suicide bombers.

Hostility or animosity, which one is it? Hostility probably implies a desire to fight, and since they didn't have that, who cares about their feelings? The point is they admitted defeat, and the war was over.

Your logic is that they admitted defeat because the war was over, however that doesn't explain why the war ended. I'm curious to see how you explain that.

My reasoning is that the war ended because they admitted defeat, which is the only means of ending any war: Total defeat of the enemy.

What really irritates me is that you call me naive, and then you back up your claim with this well thought out statement: "Japanese were not in the habit of becoming suicide bombers".

Edited by Jake_Ellison
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