Tuesday, October 28, 2003

Oh how I weep for the American sense of justice post-September 11. The other day I picked up the following comment on a legal blog entitled En Banc:

"Let me make one thing clear: I have little sympathy for the detainees. If they were to sit in Gitmo for 50 years I wouldn't feel bad for them. I don't think they "deserve" the rights provided by our Constitution, and some of them probably really do not fall under the Geneva Convention rubric.

It's the lack of process which bothers me. Process implicates the captor as much, if not more than, the captive. It speaks to our morals, our capacity for seeing a fair trial given to those we hate the most. I don't think they have a right to it, but I think we should give it to them anyway. We are better than them, and we are better than the alternative which they represent."

Well, at least the author thinks that the detainees should have access to legal process, which is more than the Bush administration is willing to grant them. But, more seriously, firstly, rights are not extended to people on the basis of whether they 'deserve' them or not. Rights are intrinsic; humans have rights by virtue of being human, not by virtue of perceived moral character. One does not give someone a right out of a sense of magnanimity; rights are owed. Secondly, what on earth happened to the presumption of innocence, one of the most fundamental principles of criminal justice? How can the author claim to have 'little sympathy' for the detainees when their guilt or innocence has not been established through the judicial process?

In all fairness, I should point out that many of the entries on En Banc are highly critical of the situation in Guantanomo Bay. What disturbs me, however, is that views such as the one quoted above have gained serious currency in the US in the wake of 9/11 (as has the argument that torture is an acceptable means of interrogation). And this is sad for a country that -- rightly -- has great pride in its democratic traditions, and its commitment to civil liberties.

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