Dworkin on Boumediene (plus a few of my own ideas)
Here is an excellent summary of the background, outcome and effects of the Boumediene v. Bush SCOTUS decision, which I wrote about earlier. There is one point that I disagree with Dworkin on, however: I think that Justice Kennedy's wording is not sufficiently broad as to extend the writ to prisoners held in Afghanistan or Iraq. Kennedy makes a point of saying that Guantanamo has been in US possession for 100 years, unlike these locals. This was a big problem I had with the ruling, as I mentioned before. I hope Dworkin is right and not me, but anyway I imagine that this point will be challenged in many future cases.
I want to clarify, in passing, something I said on this topic in my earlier post. Many people (for instance, Amnesty International) argue that the Bush Administration has violated the Geneva Conventions in its treatment of war-on-terror prisoners. I think that a case can be made for this. Of course, in practice there is no court in which such a case could be presented....
But, in my previous post I was willing to concede the possibility that unlawful enemy combatants fall outside of the Geneva Conventions. Nevertheless, I believe there is a strong ethical imperative not to torture or in any way violate the human rights of the prisoners. Bush should have had no reason to seek to avoid the guidelines of Geneva! Prisoners--that is to say, people--should always be treated with at least that level of respect.
Pundits and politicians (for instance, as Dworkin notes, McCain) often support Bush's evasion of Geneva on the grounds that we must hold on to terrorist suspects or else they will attack us again. But this is a bunk justification for abandoning Geneva. The current "war on terror" is not different from previous wars in this respect. It would be dangerous to release any enemy soldier before the war is over, and I agree that this war, or whatever it is, against al-Qaeda is not over. I would not be outraged if prisoners were held--even for the six years that some of them have been--as long as they were granted human rights (i.e., POW treatment) during that time, and as long as they could have the chance to confront the evidence brought against them in an open military setting. (Geneva grants prisoners charged with war crimes an appearance in a military court but not a civilian one.)
I think that there is one and only one reason why Bush tried to avoid Geneva: torture. It was assumed that torture would be needed in order to mine information from captured combatants/terrorists. But, again this not any different from any other war. It would have been useful, during the World Wars, to torture Germans to get information about their troop movements, but we didn't. We also did not systematically torture Japanese or Vietnamese, when we at war with them, even though they did not necessarily uphold our notion of jus in bello. (I'm sure that more torture went on than is officially acknowledged, but at least it was not official policy!) Why should it suddenly be ok to torture militiamen in order to find out the placement of roadside bombs? I don't want American soldiers to be killed, but this is not simply a cost/benefit analysis, where we trade the pain and degradation of the prisoners for the lives of our soldiers. This is a matter of justice.
And so, in conclusion, I'm going to segue into the issue of global justice. I think that, although most people claim to understand and agree about human rights, we have not actually worked out firm theories about the scope and force of justice on the global scale. What duties do we owe to people who are not citizens of our own country? What is the relationship between a group like al-Qaeda and the US, and what standards should each side adhere to? What happens if one side does not adhere to these standards? These are not questions about how to apply the Geneva Conventions or international law, but about what the basis for international law is or should be. The scope of these inquiries, moreover, should be global now rather than international, because we need to try to understand how people and states should interact with non-state actors as well as nations. Headway on these questions is the goal I've set for myself as I start grad school this fall. Stay tuned.
I want to clarify, in passing, something I said on this topic in my earlier post. Many people (for instance, Amnesty International) argue that the Bush Administration has violated the Geneva Conventions in its treatment of war-on-terror prisoners. I think that a case can be made for this. Of course, in practice there is no court in which such a case could be presented....
But, in my previous post I was willing to concede the possibility that unlawful enemy combatants fall outside of the Geneva Conventions. Nevertheless, I believe there is a strong ethical imperative not to torture or in any way violate the human rights of the prisoners. Bush should have had no reason to seek to avoid the guidelines of Geneva! Prisoners--that is to say, people--should always be treated with at least that level of respect.
Pundits and politicians (for instance, as Dworkin notes, McCain) often support Bush's evasion of Geneva on the grounds that we must hold on to terrorist suspects or else they will attack us again. But this is a bunk justification for abandoning Geneva. The current "war on terror" is not different from previous wars in this respect. It would be dangerous to release any enemy soldier before the war is over, and I agree that this war, or whatever it is, against al-Qaeda is not over. I would not be outraged if prisoners were held--even for the six years that some of them have been--as long as they were granted human rights (i.e., POW treatment) during that time, and as long as they could have the chance to confront the evidence brought against them in an open military setting. (Geneva grants prisoners charged with war crimes an appearance in a military court but not a civilian one.)
I think that there is one and only one reason why Bush tried to avoid Geneva: torture. It was assumed that torture would be needed in order to mine information from captured combatants/terrorists. But, again this not any different from any other war. It would have been useful, during the World Wars, to torture Germans to get information about their troop movements, but we didn't. We also did not systematically torture Japanese or Vietnamese, when we at war with them, even though they did not necessarily uphold our notion of jus in bello. (I'm sure that more torture went on than is officially acknowledged, but at least it was not official policy!) Why should it suddenly be ok to torture militiamen in order to find out the placement of roadside bombs? I don't want American soldiers to be killed, but this is not simply a cost/benefit analysis, where we trade the pain and degradation of the prisoners for the lives of our soldiers. This is a matter of justice.
And so, in conclusion, I'm going to segue into the issue of global justice. I think that, although most people claim to understand and agree about human rights, we have not actually worked out firm theories about the scope and force of justice on the global scale. What duties do we owe to people who are not citizens of our own country? What is the relationship between a group like al-Qaeda and the US, and what standards should each side adhere to? What happens if one side does not adhere to these standards? These are not questions about how to apply the Geneva Conventions or international law, but about what the basis for international law is or should be. The scope of these inquiries, moreover, should be global now rather than international, because we need to try to understand how people and states should interact with non-state actors as well as nations. Headway on these questions is the goal I've set for myself as I start grad school this fall. Stay tuned.
Labels: Guantanamo, law, policy
posted by Brian at 4:18 PM
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