I don’t like to resort to listing blogs, but a lot of my readers are seriously interested in public deliberation, and they may want to consult other blogs specifically on that subject. I recommend:
Monthly Archives: October 2004
the Guantanamo problem
In my opinion, David Luban’s 2002 article in Philosophy & Public Policy Quarterly (pdf, pp. 9-14) posed the Guantanamo problem better than anything I have seen since. To paraphrase him very loosely: A state can legitimately hold someone against his will under two distinct circumstances. First, it can detain an alleged criminal in order to try him and prove that he knowingly committed a specific crime. If he is found guilty, the state may imprison him punitively, regardless of whether he poses any present or future threat. Second, the state may hold an enemy combatant during a war. The government need not allege or prove any violation of law, or even a hostile intention on the part of the individual prisoner. However, such confinement cannot be punitive, and it must cease immediately when hostilities end.
We do not want governments to cherry-pick the most convenient aspects of these two situations. But that is exactly what we see in Guantanamo, where prisoners are treated as combatants (insofar as they are detained without criminal charges or due process)–but also as criminals (insofar as they are held individually responsible for their actions and offered no hope of a negotiated release when the “war on terror” ends). This convenient mixing of two sets of norms certainly sets a dangerous precedent for civil liberties.
However, I think that the U.S. Government faces a genuine dilemma. (I’m now speaking for myself and not paraphrasing David Luban.) Hostile fighters picked up in places like Afghanistan and Iraq cannot be held for the duration of hostilities, because they don’t belong to organized, hierachical groups with leaders who can possibly sign peace treaties. Nor can they be prosecuted as criminals under US law, which doesn’t apply where they were captured. In many cases, they didn’t even violate local laws. Yet some of them, surely, pose a genuine danger and can cannot simply be let go.
So what to do? I would suggest the following steps:
1) State very clearly and publicly that special circumstances arise when combatants who hold foreign citizenship are captured on foreign soil, fighting the US on behalf of loose networks instead of states. They cannot be accorded the full set of rights held by other categories of people, such as US citizens, people arrested for violent acts or conspiracies on US soil, or enemy soldiers fighting for formal organizations. The treatment of these Guantanamo-style prisoners sets no precedent for criminal law or the law of war. It is a regrettable exception.
2) Try to minimize the number of people held under these unusual circumstances, by (a) releasing anyone who is not a significant threat; (b) prosecuting anyone who is alleged to have violated US law; (c) turning over to foreign countries anyone who is alleged to have violated their laws, as long as these countries honor due process and human rights.
3) Accord appropriate but limited rights to the remaining prisoners. They cannot be tried in regular US courts, because they are not alleged to have violated US laws. But the government could be required to prove before a special tribunal that each prisoner poses a continuing threat. The prisoner should be able to rebut that claim. Furthermore, those who are held as potential threats should not be otherwise deliberately punished. They should be detained in reasonably comfortable settings.
I am aware that the US Government resists trying those Guantanamo prisoners who are believed to have committed actual crimes, because trials can disclose secret information. But this is where I think we should dig in our heels and say that the need for due process is more important than secrecy, even in a “war.” If the basis for holding someone is a criminal allegation, then the prisoner should get a fair and speedy trial. Otherwise, everyone’s rights are threatened.
legitimacy of NGOs
There was a time (I would say, the later nineties) when people who promote the economic and social development of poor countries were tremendously enthusiastic about non-governmental organizations (NGOs). Democracy, these people had discovered, meant more than voting; it required freedom of association, pluralism, and civil society. In practice, “civil society” boiled down to NGOs that could be funded. When there was a democratic state in place, NGOs could be supported as components of civil society. When the state was authoritarian and/or corrupt, NGOs could be funded as alternatives to the government. However, a strategy of funding NGOs creates problems as well as advantages. Michael Edwards’s book Civil Society is a good guide.
I’m part of a research project at the University of Tillburg, in the Netherlands, that will investigate the legitimacy of NGOs. (I’m an unpaid member of the research team, which means that my main contribution will be advice, which is worth about what it says in the budget.) The Tillburg researchers, Anton Vedder and his team, rightly lay out some of the main concerns about NGOs. Nobody elects these groups. They are accountable to foreign funders but not to local governments or publics. And they tend to promote single issues, which means that they are poorly placed to weigh competing values (such as environmental protection versus economic development, or economic welfare versus democratic processes). The Tillburg project will begin, usefully, by interviewing numerous NGO leaders to find our how they define their own legitimacy.
everything’s relative
I’ve been trying to figure out why my perception of last Thursday’s debate was not especially favorable to John Kerry, when various polls and focus groups have consistently declared him the winner. Note also that the big liberal bloggers were lukewarm about Kerry’s performance on Thursday night, but they have become more bullish since reading the polls. I suspect that the debate appeared very differently to people with different baseline assumptions about the candidates:
debating, the easy way
It’s easy to debate if you have a day to mull over the moderator’s questions and your opponent’s statements, you can look things up on the Internet, and instead of speaking before an audience of millions, you can compose your thoughts on a computer. With those huge caveats, here are some answers that I would have liked to have heard last night. (My inventions are in italics; the rest is real.)