Guantanamo Bay and Due Process - Term Paper Example

Guantanamo Bay and Due Process Introduction Guantanamo Bay is a prison that holds individuals who are accused of being enemy combatants tothe United States, and is based in Cuba.1 Unfortunately, the individuals at Guantanamo Bay, because they are considered enemy combatants, are not entitled to the same rights as others would be if they were tried in the United States. Specifically, they are not accorded the same rights to information as people others who are tried in the United States, nor are they accorded the same rights to confront their accusers. The Bush Administration even tried to suspend habeas corpus, which means that, if a person is put into Guantanamo because of a mistake, they would not be able to discover this. While there some justifications for treating these prisoners in this manner, there are compelling reasons not to. This essay will examine all of these different sides. Hamdan v. Rumsfeld Hamdan v. Rumsfeld2 is a 2006 case that was heard before the United State Supreme Court regarding military commissions which were set up by the Bush Administration, in order to try detainees at Guantanamo Bay. In this case, the Court considered whether the United States Congress could pass legislation that would prevent the Supreme Court from hearing any case of a military combatant. It also considered whether military commissions that were set up for the prisoners of Guantanamo Bay violated federal law. The case also considered the 1949 Geneva Convention, and examined whether the articles may be enforced by the courts.3 The facts of the case are that Salim Ahmed Hamdan, who was a Yemen citizen, and was the bodyguard and chauffeur to Osama Bin Laden, was captured when Afghanistan was invaded. After Afghanistan was invaded, and Hamdan was captured, Hamdan was sent to the US to the Guantanamo Bay detention camp in Cuba. He was charged with conspiracy to commit terrorism. 4 He was then committed to be tried before a military commission. A military commission differs from a United States civilian court in different ways. 5One way is that there needs not be a unanimous jury decision on guilt or innocence – if only 2/3 of the jury agrees to a verdict, then this is enough for conviction. Moreover, in military commissions, the accused cannot have all of the evidence that is to be used against them – there can be secret evidence that the person cannot have access to, therefore would not be able to refute it.6 Evidence that was extracted through coercion can also be sued, although information that was extracted through torture cannot be used.7 The commission would have the ability to use secret information, as the proceedings may be closed by the Presiding Officer.8 The accused also are not entitled to have a free choice of attorney, and can only use military lawyers or civilian attorneys who have passed the Secret security clearance.9 And, even if the person is acquitted of all the charges, he could still be held as an unlawful combatant.10 Hamdans attorney challenged the constitutionality of the military commissions by submitted a writ of habeas corpus. The challenge to the military commissions was that they violated the United States Constitution, because the commissions did not have the protections that were guaranteed by Geneva Conventions and the United States Uniform Code of Military Justice.11 The Court in this case found that the military commissions were illegal under military justice law and the Geneva Conventions. They also found that President George W. Bush did not have the authority to set up war crimes tribunals, but found that Congress would have the authority to set these up. 12 Boumediene v. Bush Boumediene v. Bush13 was another case that concerned enemy combatants, and the facts of this case are different from the facts of the case of Hamdan above. This is a case that occurred after Congress passed the Military Commissions Act of 2006.14 In this Act, Congress created military commissions that were similar to those that were created by the Executive Branch. In these new Military Commissions, the detainees could have hearsay evidence sued against them, for instance.15 They also had restrictions upon what they could refute or learn about classified evidence.16 Moreover, evidence that was extracted through enhanced interrogation techniques could be used against them.17 The Act also stated that all pending habeas corpus submissions which were made for the captives should be quashed.18 What this Court found was that the petitioners who were held at Guantanamo Bay were entitled to file writs of habeas corpus, and that, even if Congress had elected to suspend that right, the detainees still have the right to demonstrate that he is being held because the law was applied erroneously, or was interpreted erroneously. He also must have the right to determine if the government evidence against him is sufficient, and to be able know if there is exculpating evidence.19 Factual Differences Between the Cases The main difference between these two cases is that they concerned different procedures in the judicial system. Or, to be more precise, in the Hamdan case, there was a challenge to an entire judicial system that was set up just for the enemy combatants, or the people who were allegedly enemy combatants. The Boumediene case, on the other hand, was a challenge to the right of habeas corpus, which is a right that has been given to people being tried in the United States since the beginning of the Republic. Habeas corpus is a right that is given under the United States judicial system, in other words. Therefore, the Boumediene case concerned an actual challenge to a part of the United States judicial system. The Hamdan case did not concern a challenge to something within the United States judicial system, but, rather, concerned a challenge to an entire alternative judicial system. In both of these cases, the Court ruled in favor of the actual detainee, although Congress was able to effectively circumvent the ruling of the Hamdan case by establishing military tribunals which were substantially similar to the ones established by the Bush Administration. Legal/Ethical/Moral Dilemmas There are a variety of legal, ethical and moral dilemmas that surround the actions of the United States government with regard to the detainees at Guantanamo Bay. First, there are good reasons why the United States government might restrict information that the detainees can have, especially if this information is classified. Caseldine-Bracht (2007)20 states that the Bush Administrations argument for treating these individuals differently is because 21st Century terrorism is unique. Specifically, that the people who are waging the holy war against the United States, Al Qaeda, violate the Geneva Convention IV, therefore the members of Al Qaeda and the Taliban are prisoners of war. Giving these detainees access to classified information might enable them to pass this information on to their comrades if they are acquitted and able to return to their home country. Obviously, this would be enormously dangerous, and could endanger the lives of all Americans. According to the utilitarian argument, which is that if something benefits society, and the positives outweigh the negatives, then this is the correct course of action.21 What is really at the base of all the decisions that the Bush Administration has made regarding the detainees at Guantanamo is access to information. That is the reason why they dont have their choice of lawyers, because only lawyers who have passed a security clearance would be able to represent them.22 That is also the reason why they do not have access to all the information that the government has against them. Also, that would be the reason to restrict habeas corpus – the enemy combatants are not allowed to know what information the government has regarding their cases.23 Conceivably, the less information the detainee has, the better. Even if he is not allowed to return to his home country after he is acquitted, he still would be able to talk to other detainees, and classified information in the hands of an enemy combatant would be dangerous indeed. On the other hand, there are many legal, ethical and moral reasons why the combatants should have due process under the law. It is morally correct to let them have this information, because, without it, they literally would never be able to challenge their incarceration.24 If they cannot get information about why they are detained, then they would be helpless to challenge their imprisonment. This obviously is immoral – the United States has a tradition of giving people due process before depriving them of the liberty, because, obviously, the government might make a mistake. For instance, perhaps somebody is put into Guantanamo because of a case of mistaken identity – perhaps a law abiding citizen is mistaken for somebody else. That perfectly innocent person would not be able to get out of prison if the right of habeas, which is the governmental procedure for challenging mistakes, is suspended. This is obviously morally wrong. Moreover, there are legal reasons why it is wrong to deprive the prisoners in Guantanamo of their basic rights. They are being tried on U.S. soil, so they should be given the rights that all other Americans have with regards to due process. For instance, in Miranda v. Arizona25, suspects are given certain rights that they are entitled to whenever they are questioned by the police – such as the right to remain silent, the right to counsel, etc. The detainees do not have a right to properly contest their case - individuals in a free society, including the United States, should have a right to confront their accusers, and should have the right to properly review their case and be able to properly prepare for trial in their case. The rules of the military tribunals negate this right, for the detainees are only allowed to see what the government wants them to see. This strips them of their basic rights of due process under the law. If the United States does not want to provide the prisoners with due process, then they should not be trying them under a United States justice system - they should ship the detainees to another country that does not have the same rights of due process as does the United States. Because depriving them of these basic rights makes a mockery of the justice system. Caseldine-Bracht (2007)26 states that the excuse that this is a time of war, therefore the rule of law should be suspended is just that – an excuse. She states that the American Justice system should be able to stand up during times of war. She states that it should not matter if the person is captured on American soil or foreign soil. And, she is correct – a person is a person, no matter where they are captured, and, if they are to be tried in the United States, then they should have all the rights of any other person in the United States. The justice system has sustained this country for over three hundred years, and, therefore, it should be strong enough to provide rights to any accused tried on the United States soil. There is also an issue on how the detainees are treated, and Caseldine-Bracht (2007)27 argues that the treatment of these prisoners violates various international treaties. She states that there have been reports that “uncooperative prisoners were stripped to their underwear, with a hand and foot shackled to a bolt in the floor, maximizing the amount of cool air coming from air conditioners, playing loud rock music, and using strobe lighting.” 28 Caseldine-Bracht (2007) argues that this kind of treatment runs afoul of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which includes in the definition of torture inflicting physical or mental suffering at the hands of a public official.29 Six Philosophers Limiting Rights Plato According to Souryal (2011),30 Socrates, who inspired Plato, his pupil, although did not leave writings, had definite ideas about the Republic and the definition of justice. Socrates had the idea that the ideal state consists of three classes - the producers, who provide the material needs for the community, and who should be marked by temperance; the auxiliaries, who maintain law and order, and should be marked by courage; and the guardians, who are responsible for formulating and applying the policy of the state, or, in other words, the government, and they should be marked by wisdom. The fourth element of the ideal state, according to Socrates, is that there must be a proper relationship between the other three, and this is what is meant by the word justice.31 Plato had a criticism of democracy, which expounds upon Socrates view of justice. Plato, according to Souryal (2011), believed that not every citizen should have the right to express his view and exercise his influence in determining policy, because not everybody is dominated by reason. Only those who are selected to the position of the government, which would be the guardians, are those who should make policy. In other words, he did not believe in the will of the people and that the government should be done under necessity, and that there is not the need to determine the morality of gratifying the populace demands.32 He also believes that a government should be conducted not by moral opinion, but by moral knowledge.33 Plato, then, states that the government should be run by experts, and these experts should be given absolute power over the fellow citizens. Plato probably would have voted for limiting rights in the case of the Guantanamo prisoners. The reason for this is because the government was the one, in this case, who made the decision that the rights of the prisoners should be limited. Therefore, since the government is the expert, and the will of the people should not be heard, as the people cannot be rational regarding these rights, then the government would be presumed to be correct. Of course, one could also argue the opposite - that Plato would be on the side of giving the prisoners rights, because the United States justice system was formulated by guardians who ruled in the past, and they used the wisdom to which Socrates referred to ensure that all citizens of the United States, and all people who are tried in the United States, would have certain rights. However, in this case, the Bush Administration was negating these other rights that were handed down by the founding fathers, and, essentially, creating new rules for these prisoners. Plato would state that these new rules obviously were necessary for the sound governance, because they were put into place by the wise guardians, so these are the rules which should be followed. Niccolo Machiavelli Niccolo Machiavelli, according to Murray (1953) saw government more in terms of science than morality. He was not interested in morality, nor how things should be – he was only concerned with how things actually were.34 Governments, then, should not be concerned with morality, but, rather, should look at their goals and how to achieve them. He also believes that the individual demands security of person and property, over anything else, and, only after they are secure, can they pursue wealth and honor. Moreover, he states that the individual is more likely to be right than a community, and that the judgments of the individual, or a small group, is less likely to be erroneous than the judgment of a community. 35 Above all, Machiavelli looked at the principle of expediency, and whatever was expedient in a given circumstance – even if what is expedient is a dictatorship – is justified, especially if there are special circumstances. And, if what is expedient dovetails with supplying security to the individual, then this particular situation would be entirely justified under the philosophy of Machiavelli. Machiavelli, then, would definitely defend the right of the government to limit the rights of the prisoners in Guantanamo. After all, the stated purpose of the Bush Administration in holding these prisoners without the due process rights accorded US citizens is that giving them full rights would be detrimental to the citzenry, because it might threaten the safety of the people of the United States. Moreover, the Bush Administration also states that it is justified in doing this because it is a time of war – thus, it is expedient to hold the prisoners without according them full rights. Whether or not it is moral to do so would not factor into Machiavellis analysis – only that there are exceptional circumstances and holding these prisoners would ensure the safety of the citizenry. Jeremy Bentham The essence of Jeremy Benthams philosophy is utilitarianism, according to Souryal (2011).36Basically, punishment is justified if it somehow negates a greater pain. Men are motivated by pleasure and pain, according to Bentham. Although he thought of punishment as being a kind of “evil,” if it excludes a greater evil, then it should be allowed. In other words, he doesnt believe that punishment is necessarily retributive, which means that the punishment should not be administered just to make the person suffer for his or her sins and crimes. Bentham thought that this retributive system of punishment is one that is not rational, and this is the reason why the punishment must be justified in terms of utility - what greater harm is this punishment avoiding? In Benthams view, the treatment of the prisoners in Guantanamo would presumably be justified. Limiting access to information to the prisoners is, as noted above, a matter of national security – the information that is classified and secret cannot be given to these prisoners, so, even if the the government only has classified and secret information about why a certain prisoner is incarcerated, not giving the prisoner this information prevents a larger evil from occurring then what is already occurring. While it is evil to punish these prisoners, at least in Benthams view, as he thought that punishment was, per se, evil, since keeping them locked away, without information that they may use against the United States government, and the citizens of the United States, prevents more evil, then this would be acceptable to Bentham. Philosophers Against Limiting Rights Immanuel Kant Immanuel Kant, according to Pollock,37 believed that punishment should not be used to further the ends of a civil society, but only because the person committed a crime. He also believed that men, in general, can never be used to justify the ends of another person. He openly criticized the theory of utilitarianism, in other words, believing that it is not proper that one man die to save a whole people. Rather, he believed that if an innocent person is somehow sacrificed for the greater good, that this would mean that there was no more justice, and, in turn, it means that there is not anymore value in men.38 Therefore, Kant would not agree with the idea that the combatants are being locked up, whether or not they are guilty, because it keeps society safe. And, because the combatants are not given the right to see evidence against them, or a right to any kind of a fair trial, there surely are people who are locked up who are innocent, with no way to refute the charges. He also would not agree with the notion that they are to be treated differently because we are in a time of war. His only concern would be for whether or not the combatants are actually guilty of the crime for which they are charged, and the only way to truly prove or disprove this would be to give the person a fair trial. Only then could the government lock up the combatants. John Locke John Locke, according to Murray (1953),39 believed in the laws of nature, and that the ideal state is a moral state. The natural law that he espoused was a law that an individual should not have his life, health, liberty or possessions harmed, with all things being equal and independent. He also believed that the state of nature is the state that a man would live in if there were no government. He also believed that the government, or state authority, is subjected to these same natural laws, and that a government has not the right to act as it pleases. Even the government is governed by the natural law of morality and must respect the individuals right to life, health and liberty. Because Locke believed in morality, and that government is constrained by morality, and that his specific definition of morality concerned the rights of man to life, health and liberty, he definitely would be against the government depriving the prisoners of their rights. Since the government is depriving the prisoners of liberty without due process, this would be abhorrent to Locke, and would be an example of a government that is doing what it pleases, regardless of how moral these actions might be. Since it is immoral to incarcerate innocent people indefinitely, and this is a definite danger when individuals are being held without due process, Locke would be opposed to the governments actions in this instance. Jean Jacques Rousseau Rousseau, according to Murray (1953),40 believed in the general will of the people. Whatever the people have decided is good, moral and just are what the laws should be. The government only serves an executive function, which means that it is put there only to carry out the will of the people. The will of the people is the spontaneous will of the body politic, according to Murray (1953), and the people are who are to set public policy. Therefore, if the will of the people is that all individuals, regardless of whether or not they are captured here, who are subjected to the United States judicial system, must have certain rights, then this is what should control. In contrast, the rules regarding the Guantanamo prisoners was not reflecting the will of the people, but, rather, were reflecting the will of the Bush Administration. Since the government, under Rousseaus view, is only in place to carry out the peoples will, this would be antithetical to Rousseau. Conclusion The prisoners at Guantanamo are there without due process rights. They do not have the right to adequate information that would help them get out of prison, therefore there might be perfectly innocent people who are in languishing in this prison. Everybody who is subjected to the United States justice system should have certain due process rights – the rights to the attorney of ones choice, the rights to confront accusers, the rights to see what information the government has against a person, the right to habeas corpus, etc. Since these prisoners do not have these rights, then that means that there is not justice for these individuals. While there certainly are philosophers who would proclaim, in essence, that the ends justify the means, morality would dictate otherwise. For the old maxim is correct – it is better for 100 guilty men to go free then to incarcerate one innocent person. References Boumediene v. Bush 553 US 723 (2005) Butler, C. Guantanamo Bay and the Judicial-Moral Treatment of the Other. West Lafayette, IN: Purdue University Press, 1987. Print. Caseldine-Bracht, J. “Security, civil liberties, and human rights,” in Butler, J. (2007) Guantanamo Bay and the Judicial-Moral Treatment of the Other. West Lafayette, IN: Purdue University Press, 2007. Print. Hamdan v. Rumsfeld 548 US 557 (2004). Military Commissions Act of 2006 Murray, A. An Introduction to Political Philosophy. London: Cohen & West, 1953. Print. Pollock, J. Ethical Dilemmas and Decisions in Criminal Justice. United States: Wadsworth Publishing, 2010. Print. Souryal, S. Ethics in Criminal Justice. MA: Elsevier Publications, 2011. Print. Read More