Scott versus Scott

Welcome to our blog. Here we will debate the days most serious topics and allow users the chance to discuss the topics as well. The range of topics will vary, but one thing will remain certain, the debate will rage on. Scott Lesinski is a proud conservative and Scott Jones is a proud liberal. However, the roles will switch on some topics. Stay tuned.

Scott Lesinski is currently an actuarial associate for a large human resources and insurance consulting firm in Saint Louis. He is also an avid student of US history and enjoys following current events, with an eye to their contextual relationship to the past. He is also, in fact, a former student of Mr. Scott Jones. Scott is working toward his FSA credentials, which is akin to earning a PHD in Actuarial Science.

Scott Jones is currently a high school social studies teacher at a high school in suburban St. Louis, MO. He teaches World History, AP American Government and Senior American Foreign Policy. He has a BS. Ed. (Secondary Social Studies) from the University of Missouri - Columbia and a M.A. (History) from Southeast Missouri State University. He is currently working on a dissertation in character education to earn a Ph.D. in Educational Psychology.

Thursday, November 19, 2009

On Terrorist Detainees and the Writ of Habeas Corpus

I have just read of friend of mine’s law school thesis on winner’s justice in international law and the validity of post-war international justice tribunals. Scott’s post brought to mind several ideas I had from reading my friend’s thesis.

The idea that I keep coming back to in my friend’s law school thesis and Scott’s previous post deal with morality and the acts of nations as they deal with the handling of prisoners during and after war.

Three moral philosophers can help us define how to handle these Al-Qaeda operative or associate detainees from a moral perspective. For each of these philosophies, I will attempt to apply their views on morality to the question at hand.

What should the United States do with the Al-Qaeda detainees at the Guantanamo (Gitmo) Navy Base in Cuba?

At the start of this morality debate, is Niccolo Machiavelli.

His idea that nations can’t be held to simple morality leads to the conclusion, at least on the national level, that the ends justifies the means. In other words, the tribunals at the end of a war, or in this case, the trying of the terrorists in civilian US courts, is another way for the winner to inflict casualties on the enemy.

In an era of unconditional surrender (i.e. WWII), these tribunals just have the effect of carrying out a complete victory over the defeated enemy by removing the leaders of the failed war effort. Remove the leaders, remove the desire and conditions that created the state of war in the first place.

Let me state that I completely reject the Machiavellian view in this discussion. In this view, the attack on September 11, 2001 can be considered acceptable so long as Al-Qaeda achieved its goal.

Complete BS. The acts of Al-Qaeda on September 11 were such a violation of the moral code of humans as to warrant no further discussion on it. It also nullifies Machiavelli’s view of morality in this discussion.

One must also look at Immanuel Kant’s categorical imperative in discussing this issue of international war tribunals and the Gitmo detainees.

According to Kant, if an act is immoral, then it is always immoral no matter what circumstances that led to the act. This view leads to the automatic conclusion that you cannot respond to murder with murder of its own. If the Japanese commit an immoral act on the United States, it does not give the United States permission to commit an immoral act on Japan.

With this view, the bombings of Hiroshima and Nagasaki by the US, the fire-bombing of Dresden by the US and UK, and other acts you mention in the paper are categorically immoral and, therefore, can never be justified.

From this view, the idea of winner’s justice is, at best, hypocritical and, at worst, just as immoral as the acts that started the war.

Another view of morality as it pertains to war tribunals is Georg Hegel’s moral superman.

According Hegel, one may commit an immoral act so long as a greater moral good is accomplished. Mahatma Gandhi and Martin Luther King are two men that come to mind as examples of this. However, Hegel argued that the individual is not able to make this judgment. Society does. Gandhi and King broke laws and acted immorally in ways that their societies, and the world, later deemed just and moral.

The example of the Gitmo detainees is an example of liberal democracy overcoming conservative monarchy/dictatorships, which is also the case in the military intervention of WWII, Korea, Vietnam, Serbia, Afghanistan, and Iraq. These liberal democracies might have acted immorally in these conflicts, but the greater good of bringing freedom to these peoples overshadowed the immoral acts.

Since liberal democracy has been the dominantly accepted moral government over the last 200 years, especially in the West, then immoral acts done by these nations can be overlooked since a greater good, as determined by history, has been accomplished.

Therefore, justice of freedom is moral justice.

How then do I apply this to the issue…

I do believe that freedom is the moral state that into ALL humans are born. While democracy is neither a moral nor an immoral instrument, it is the form of government that seems best equipped to allow the natural state of freedom to exist. While democracy has its shortcomings, it is clear that monarchies and dictatorships do not allow freedom of all peoples to exist.

Therefore, fighting forms of governments that inhibit freedom can be shown historically to be moral, even if these wars might cause the democracies to act immorally to accomplish this end.

Of course, this does not mean that the democracies can do whatever they want in order to bring freedom to the peoples of the world. Lieutenant Calley’s actions at My Lai can be considered an example of violating the moral code of war, as defined by these democracies. There are other examples, but I don’t want the discussion to focus on my judgments of whether or not a specific incident violates a larger moral code.

What I do want to focus on is how to proceed with the Gitmo detainees. As Scott pointed out, President Obama has ordered Gitmo closed and has begun the process of bringing these detainees to civilian courts in the United States.

One of the favorite quotes of the left in this debate comes from something Edward Murrow said at the end of WWII. The great broadcaster said, “…as long as America acts morally, America will always be great. When America ceases to act morally, America will cease to be great.”

As with most political debate, this quote and the argument begs the question of the key aspect of the debate. Is the holding of Al-Qaeda detainees without trial at Gitmo an immoral act?

According to a Kantian view…Yes. According to the Hegelian view…???

I do not believe that the interests of America’s national security allow the nation to violate the principles of freedom. National Security is vitally important, but not in a Hegelian Supermen sort of way.

Therefore, it comes down to what one believes about the Writ of Habeas Corpus.

Is the right to a writ of habeas corpus a fundamental right of a human naturally born into a free state? Or, is the writ of habeas corpus simply a right that is part of living in a free society?

Just to be clear, the writ of habeas corpus simply means the person accused of a crime has the right to be informed of the charges against them and the right to see the evidence against them.

In practice, the writ of habeas corpus means that the person accused of a crime has the right to a trial and the right to confront the evidence against them. Essentially, the Notice of Accusation Clause and Confrontation Clause of the Sixth Amendment guarantee the right to a writ of habeas corpus.

Scott argues that since the detainees are not US citizens, then the writ of habeas corpus is not a right the detainees have. However, is the writ a fundamental right of all people and the goal of the democracies in these wars?

The writ of habeas corpus, in Blackstone’s Commentaries, is an essential part of creating a limited government that guarantees freedom for people.

Ben Franklin and Thomas Jefferson both considered the writ of habeas corpus to be the essential right that would guarantee the American government would not act in the tyrannical manner the Americans accused George III of acting, in which the Americans argued the King had violated his own Habeas Corpus Act of 1679 with the “Intolerable Acts of 1774-1775.”

Scott further argues that the Miranda Rights were not read to the detainees. True, but is that their fault or the fault of a government that was hypocritical to the principles on which it was founded?

At the same time, can the writ of habeas corpus be denied to certain individuals, not US citizens, in the name of creating a world safe for the spread of liberal democracy and ridding the world of monarchy/dictatorships?

The world needs to hear America’s view on the exact nature of how far the right to a writ of habeas corpus extends.

Doing so in a non-hypocritical way that remains true to the ideals of the philosophers of the Enlightenment, who first proposed these ways of government, and our Founding Fathers will put the debate to rest finally and allow America to proceed as the Hegelian Superman on this issue.


  1. As I see it…

    The writ of habeas corpus is a fundament right to freedom that should only be violated in times of great duress.

    I think Lincoln was right to suspend during the War among the States. (This is a great debate among historians and Constitutional lawyers and an unsettled matter.)

    However, FDR was wrong to do so to the Japanese-Americans in WWII. (This is a great debate among historians and Constitutional lawyers and an unsettled matter.)

    Is the War on Terror such a time of duress, without an Act of War from Congress, the answer is no.

    Had President Bush asked Congress for an Act of War against Islamic Terrorism, which he would have received without much debate, this issue becomes moot.

    Our Constitution provides that the Writ of Habeas Corpus may not be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    Historically, this has meant only in times of declared war may the writ of habeas corpus be suspended.

    For me, the real questions remain…Why did President Bush not ask for a declaration of war after September 11, 2001?

    Or, at the very least, direct permission from Congress to treat the Al-Qaeda detainees as invaders of the United States, which would automatically deny them the right?

    After all, the suspension of the Writ of Habeas Corpus provision is in Article I (section 9, clause 2), which defines the role of Congress in our nation.

    Instead, President Bush acted as if the Executive answers to no one in this country.

    This was a huge mistake in my opinion. As well as a clear violation of the limited powers doctrine with which conservatives love to attack liberals.

    At least liberals understand we must go through both Houses of Congress and have the President’s signature before enacting changes to the limited powers doctrine.

    Not only has America acted immorally in the handling of the Gitmo detainees, America has violated the limited government principles of its founding.

    On this issue, a Hegelian Superman America is not.

    I do understand that those on the right will disagree with my conclusion. One of the great aspects of Hegelian Superman is the discussion whether or not the immoral action can be justified or not.

    I look forward to hearing how the actions of the United States in this manner can be justified of achieving a greater good (retribution and national security do not spread a greater good to the world), which would then allow for the violations of morality and the principles on which we were founded.

  2. My problem is still twofold (at least):

    1. Our Constitution applies to US citizens. The Gitmo detainees are neither American citizens nor prisoners of war. They are enemy combatants and do not deserve the protections of our constitution.

    2. Trying these guys in NYC in the US Criminal courts will ONLY result in negative consequences for the United States and there is a good chance they will either be acquitted or have the charges against them dismissed. My reasoning for this is that they were not mirandized and our President has declared them to have been tortured and also declared that he is confident they will be found guilty and the death penalty will be applied. KSM's slick ass lawyers (or if he defends himself, he) could easily say his confession was coerced by The Great Satan while torturing this Soldier of Allah.

    Not only that, but he and his lawyers will have total access to all of the CIA processes, evidence, techniques, et al. This trial will put America on trial and will broadcast it to the world.

    Military tribunals work just fine and have been used by both Republican and Democrat administrations to handle these matters.

    This is a political move. Obama has not the guts to try Bush and Cheney for war crimes, but if all of this covert knowledge is made public, other countries may very well try to accuse Bush and Cheney of crimes to be held in international court. It is not about upholding the writ of habeas corpus as they are and have been holding tribunals for similar detainees. Its about politics and this banana republic administration is placating the radical leftwing Bush hating base.

  3. Kids at school have been having a difficult time with the American History and the sequence of events govering their study. I created some concise flashcards,which I hope will make things easier for them. What is your opinion on this method?( and also on these flashcards)

  4. Let me slightly disagree with Scott J, and completely agree with Scott L. As a radical left-wing Bush hater (Honestly, how can you hate someone who is both weak and ignorant? Pity would be a more accurate emotion.)I believe that one ought to give credit to America for encouraging the events of 9/11. Books like The Ugly American, The Power Elite, and the Arrogance of Power have said a great deal about the mistakes made by America related to justice and the world community. However, one can specifically argue that our country's hatred of Arabs and Muslims, among others, encourages the fanatics who despise us. If you want to be treated justly by the world, you must try applying justice to your actions with the world.

    Nevertheless, there are other related issues involved. The key point may be how we think of Habeas Corpus. Do you believe that every human being ought to be treated fairly, given the right to face an accuser and know of the accusations being alleged? Scott L says this only applies to Americans. Oh well, tough on the Mexicans and everyone else for that matter. When we begin identifying those who we believe are really human, we enter a dangerous place.

    If a jury can't find "terrorists" guilty, then maybe we need to reconsider our view of terrorism. I guess some Muslims would use the words "freedom fighters;" what would the British have said about us?

    Plus, we torture our prisoners in the current war, and we've done plenty of horrid things over hundreds of years. If you don't believe that our culture has severe deficiencies, simply log on to the website for Without Sanctuary. If you can look at the postcards sent by thousands of Americans to their friends, with pictures of lynched black people, and not wonder what's wrong with us, then you may need a careful evaluation of your values.

    VP Cheney asked, "What kind of people could be so cruel and barbarous?" That seems like a good question that we could turn on ourselves?

    So, yes, I'd try the "terrorists," and I'd give a jury a chance to decide. I don't want to see them committing new crimes against thousands, but I don't want to see us doing those things either. I want America to live up to real values of justice and decency, not the more limited ideals suggested by Scott L. and Adolph Hitler. (OK, you can throw in Lyndon Johnson as well as others.)

    So, get a grip on the meaning of justice and honesty and empathy. America is not a synonym for truth. It is just the name of a country that must always decide the right path, just like the others. When we fail, we're no better than the others.


  5. Mark,

    In 2006, then Senator Barack Obama encouraged the use of military tribunals because he said he believed in their ability to be fair and allow the terrorist (ahem, accused freedom fighter...) the ability to bring witnesses, show evidence, etc.

    How come all of a sudden its "cruel and barbarous" to use these military tribunals instead of a full US Civilian criminal trial?

    You and SJ have both failed to even comment on the fact that any conviction any jury could find against these terrorists (ahem, accused freedom fighters) could very likely be thrown out on the grounds that the accused were not read their rights and were in fact, according to the POTUS, tortured. They could quite easily claim their confessions were coerced, despite their earlier expressed wish to be martyred for Islam.

    You have both also failed to acknowledge the immense danger we will put our CIA and military in by exposing all of the secrets and techniques used in gather evidence against the accused. This is why we have the military tribunal system, a system which Obama continues to employ. What makes KSM and the other 4 so special that they deserve a circus show trial where they'll get a soap box to rant about the evil of America? If all of a sudden the military tribunal system is so "cruel and barbarous" why not do away with it, Mr. Obama?

    Don't get all high and mighty and moral equivocating. This has NOTHING to do with morality and EVERYTHING to do with politics.

  6. Scott - of course it is politics. I am not equivocating morality and politics. This would've never been a political issue if W. would've respected the Constitution in the first place.

    For God's sake Scott, W. had a Republican controlled House AND Senate, but refused to recognize Congress' power to set ruled for those captured (see Article 1, Section 8, Clause 11) in a time of war.

    A simple resolution by Congress about the status of these detainees would've solved the problem. However, W. didn't recognize Congress' right to do anything. The Constituion was simply something to be cast aside at the directive of the unitary executive.

    Since W. did none of this - because I assume he knew the moral implications of what he was doing and Congress would never go for it - this becomes an issue of morality.

    Yes, I want to know what the United States did in my name to these men. If America has acted immorally, we need to know that and not use some stupid cover such as national security.

    If America has done nothing wrong, then why are conservatives so scared of this trial?

    The man will confess again, he will want to be put to death, we will do it.

    What dirtly little acts of immorality are conservatives so eager to cover up?

  7. In addition, don't assume from my comment that I advocate a weak national security. I believe the United States has a responsibility to protect its borders.

    However, I do believe that we must follow the Constitution as we do it. The Constitution gives plenty of leeway to accomplish this, however, W completely disregarded it.

    I don't think W is the only one on trial here. The Constitution is as well. At leat, the conservative national security intepretation of it.