We must be most vigilant to defend civil liberties at the extremes
Apr 7, 2011

We must be most vigilant to defend civil liberties at the extremes

It is easy to wish bad things on ostensibly bad people. Khalid Sheikh Muhammad, the 911 mastermind, is undoubtedly such a person and Obama's recent capitulation to the congressional realpolitik that sends 'KSM' to a military tribunal at Guantanamo Bay and not a civilian trial is stirring up the usual, justified, feelings of animosity towards him.

When someone is so bad, and so hated, it is natural to have a desire to slightly erode the civil liberties, the due process, the fundamental rights of humans so as to expedite and ensure a harsh punishment. The KSM case is extreme in the sense that the crime is extreme - 911 was unimaginably horrific - and that there is essentially no doubt he did it and as such it is easy to prejudge him. Given the desire for revenge and the quasi-legal status of KSM it is cases like these where the eroding of civil liberties is most likely to begin.

As such, contrary to perhaps our innate tendencies, it is these extreme ends where me must be most vigilant and forceful of our defense of fundamental human values, civil liberties and the following of due process. Since this is where it is most likely to first occur, the defense against such erosions must occur here first and foremost.

Should we hesitate in our conviction of these values - values that are necessary for our moral authority to act in the world - we must then contend with a moral slippery slope. If we can set aside a desire to see perfect due process in the KSM case, what about for a case slightly less extreme in the crime or slightly less obvious that the alleged perpetrator is guilty? Unless we accept absolutism and universality in the application of the law, every single case must be argued morally in a subjective and probably arbitrary way.

It must be noted that the reason for supporting perfect rule of law for KSM is not for KSM's sake, but of our sake and the sake of the values we represent. Abandoning the rule of law is harmful to our society and must be defended for our sake, not his.

This defense I am expounding on civil liberties in extreme cases can be argued - liked many moral claims - from either an ideological or utilitarian perspective. The ideological one is simply to accept the human values and rule of law as inviolate. It is important to note this argument since this is the ostensible position of many on the right with regards to the constitution and cannot, in my understanding, be consistently expressed together with any hesitation in following the rule of law in all cases. However, as I usually end up in the utilitarian persuasion, this must be addressed from the utilitarian perspective as well.

As alluded to earlier, the utilitarian case is essentially a slippery slope argument. Namely, that erosion of civil liberties at extremes paves the way for further erosion detrimental to society. A slippery slope argument is not a priori invalid provided it has a reasonable basis for saying it might occur - the term is conventionally used with negative connotations because of the prevalence of specious arguments along these lines. Here we have a rich and robust history around the world of regimes which despite official rules on the books went far in the wrong direction of breaking these rules to the signifiant detriment of its people. Even within the US the suspension of the rule of law in Guantanamo Bay and blacksites in many other countries has not only harmed many innocent lives but provided considerable blowback and further has harmed the reputation and moral authority of the United States. Given the precedent, it is quite legitimate to worry that small suspensions of the rule of law in any specific extreme case paves the way for a wider and detrimental suspension of the rule of law.

We must thus resist any attempts to dampen the rule of law for KSM and others like him based on emotional appeals of revenge, hatred or a perception of what he deserves and recognize that the ideologically just and pragmatically necessary course of action is complete compliance with the rule of law to the point that every i is dotted and every t is crossed. 

Thoughts on this post? Comment below!

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1 comment:

jongh said...

I agree with you. Its about being an example for everyone else and not perverting our justice system by embracing terror tactics. We don't want to continue to set precedents that say it's ok to efface civil liberties.

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