A Philosopher's Blog

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Lindsey Graham

Indefinite Detainment

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American Terrorist
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While the actual threat of terrorism is rather minor (even the worry that terrorists might obtain a nuclear weapon clearly pales beside the fact that nations are already well armed with nuclear weapons) there is still an ongoing obsession with passing laws allegedly aimed at security.

As with many attempts to (allegedly) improve security, one of the more recent approaches has involved a clear infringement on rights and liberties. To be specific, the senate recently blocked an attempt to ban the indefinite imprisonment of Americans suspected of terrorism.

The stock justifications for allowing the military to detain American indefinitely are that terrorists are bad and that to not allow this sort of thing puts us in greater danger.

While it is true that terrorists are bad, rapists and murders are also rather bad. In fact, more Americans are killed by non-terrorists than terrorists and this would seem to thus warrant indefinite detainment of all dangerous criminals. This, as might be imagined, would run contrary to the basic legal rights of Americans. As such, the idea that terrorists are bad does not seem to warrant this difference in treatments.

As far as the security value of indefinite detainment, one obvious point of concern is that in order to detain a person, they must be discovered and arrested (or captured).  As such, the indefinite detainment does not seem to aid in actually capturing people. It merely allows people to be held indefinitely. While this could be justified on the grounds that a person who is detained indefinitely would do no more misdeeds, the same argument could be applied to anyone who poses a threat-which would include many non-terrorist criminals.

It might be argued that a terrorist is not entitled to the rights of a citizen since he is an enemy combatant. In the case of alleged  terrorists who have allegedly elected to serve a foreign power, they could be taken to be traitors. However, the matter becomes a bit muddled when the alleged terrorist is entirely domestic in allegiance and motivations. In such cases, the person could be taken to be a traitor in the sense that he would be allegedly making war on the United States. Of course, what would be needed is a clear distinction between a terrorist and a criminal who merely intends to murder Americans and destroy things. Perhaps this could be sorted out in a clear and principled manner.

Perhaps the most significant point of concern is that an American who is accused of being a terrorist in the United States is just that-an accused terrorist. Until it is legally established that an American is a terrorist, then he is merely a suspect and thus still entitled to the full legal rights of an American citizen. In other words, if an American is taken on American soil and denied his rights because he is alleged to be a terrorist, then his rights have been violated because he has been assumed guilty without trial. If he is to be justly stripped of such rights, then his status as a terrorist must be established.

If an American is captured outside of the United States while acting as an enemy combatant (for example, he is captured during an attack on an American base in Afghanistan), then a reasonable case could be made for treating him as an enemy combatant. However, he would still be an American citizen and must be subject to the American legal system. Naturally, if an American is killed while attacking American forces in an act of war, then that death would (in general) be justified.

A final point of concern is that indefinite detainment will be misused. After all, the most common application of the various “anti-terrorist” laws has been in the area of mundane crime (mainly drug crimes).  One obvious concern is that this approach could be used against people who are protesting against the government or who might be targeted for detention without trial.

It might be objected that I am “naive” and do not see “the danger.” My obvious reply is that this alleged danger does not warrant the violation of our basic legal rights. Each time someone wishes to erode rights they make these same sort of appeals to fear and “security.” While such fears might be sincere, they do not warrant an attack on the very liberties and rights they are allegedly created to defend.

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Koran Burning

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Koran
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Last year Terry Jones gained international attention by threatening to burn the Koran. The situation seemed to have been resolved with Jones’ decision not to burn any books. However, he and some of his fellows went through with the burning on March 20, 2011. While most of the world did not react to this event, some people in Afghanistan and Pakistan reacted quite strongly. In the case of Afghanistan, the burning led to riots. The first of these resulted in the deaths of seven U.N. workers (none of whom were Americans) and four demonstrators. More deaths have followed and it seems likely that even more people will die before the event plays out.

One aspect of this incident is that some of the rioters are obviously willing to murder people who have no connection whatsoever to the burning of the Koran. As such, it seems rather difficult for them to claim that they are acting on the basis of any meaningful concept of justice. After all, justice seems to require distinguishing between those who are accountable and those who are not accountable. There is, of course, also the rather important matter of whether or not the burning of a book warrants death.

Interestingly enough, an unwillingness (or inability) to distinguish between people is something that is often seen among Americans who are hostile to Islam and regard all Muslims as terrorists (or potential terrorists). This unwillingness to make such distinctions seems to be a significant factor in the mindsets of such people. Whether this is an effect of their hatred or a contributory cause (or both) is something that remains to be determined.

Rather than focus on this matter, however, I will instead focus on the American reaction to the incidents and its repercussions.

On view, put forth by Democratic Senator Richard Durbin of Illinois, is that while the First Amendment guarantees freedom of speech, assembly and religion, Americans should exercise these rights responsibly.

This view seems to be quite reasonable. After all, the constitution is rather clear about the legal rights presented in the First Amendment and the rulings of the Supreme Court have been consistently in favor of free speech, even when such speech does have negative consequences.

An obvious response to this view is that not all speech is protected nor should it be. To use the classic example, people do not have the legal (or moral) right to yell “fire” in a crowded theater when there is no fire. This is because their speech would cause direct harm under reasonable legal and moral views of causation (sine qua non and proximate causation).

In the case of Jones’ burning the Koran, his expression seems to have caused Afghans to attack and kill people. Given this sort of harm, Jones’ actions should not be considered legally protected and should also be regarded as morally unacceptable. After all, his actions would seem to have caused needless and wrongful harm to others.

The easy and obvious reply to this is that there is a relevant difference between the theater example and the Koran burning. In the case of the person yelling fire, the action is a deceit (there is no fire) and it is reasonable to expect people to try to escape a building that is supposed to be on fire. It is also reasonable to expect that people could be injured during the escape attempt. As such, there seems to be a rather direct link between the yelling of “fire”and the harm that would result.

In the case of burning the Koran, the link seems to be more indirect. The book is burned, people learn about it, they become angry, they riot, they go looking for Americans to kill, they do not find Americans so they attack U.N. workers and kill them. In this scenario, the causal link seems to be such that Jones’ moral and legal culpability is very limited. In fact, he seems to have no legal culpability whatsoever.

To use an analogy, if I were to criticize the views of a British colleague in a spiteful manner and burn their book and they responded by going and punching a Canadian philosopher, then I would hardly be responsible for those actions. Even if I knew that they were hot tempered and likely to do this, I cannot be held accountable for their lack of self control.

It might be replied that if someone knows that other people will do harmful things if provoked by such words or deeds, then they should not take that action. However, this makes free expression a hostage to whoever is willing to respond with violent or destructive actions  when they hear of things they do not like. This will clearly not do.

Naturally, there can be pragmatic  grounds for engaging in some common sense restraint  and moral arguments can be made as to why, on the basis of the consequences, people should not say or do certain things that might provoke people to irrational acts of murder and destruction. As a friend of mine has said, “it is sometimes best not to provoke the crazy people.”

A second view is that although the constitution is rather clear about the matter of freedom of expression, exceptions can be made in times of war. This view was put forth by  Republican Senator Lindsey Graham of South Carolina, who spoke on Face the Nation.

“I wish we could find some way to hold people accountable. Free speech is a great idea, but we are in a war. During World War II, you had limits on what you could say if it would inspire the enemy. So, burning the Quran is a terrible thing, but it doesn’t justify killing someone. Burning a Bible would be a terrible thing, but it doesn’t justify murder.”

I will begin by agreeing with the second part of Graham’s remarks: burning a religious book does not justify killing people. However, I do have some concerns about the first part of his remarks.

He begins by noting that while free speech is a great idea (something people always say before going on to say that it needs to be limited), the fact that we are at war justifies restricting it. He notes that this was practiced in WWII and he presumably thinks that a similar approach should be taken today.

On the one hand, I can see the appeal of this approach. After all, in times of war it does make sense to limit what people can say. For example, it seems acceptable to prevent citizens from freely talking about secret military plans or revealing the names and locations of agents in enemy territory. However, these sorts of things seem to be already covered by existing laws and it seems easy enough to make moral arguments against acts that would seem to be cases of potential treason.

On the other hand, this approach does have some problems. First, we now seem to always be at war with no clear end (or even a clear definition of what would count as an end) in sight. As such, it seems like a less than great idea to use the war justification. After all, since being always at war is the new normal, this would seem to mean that such limits would be in place for the foreseeable future. Second, while we are at war, the war (three of them, actually) seem to be rather different from WWII in ways that might have justified restrictions in WWII but do not justify them now. Third, there is also the obvious question as to whether such limits were justified during WWII. After all, if they are being used to justify limits now, it must be shown that they justified limits then. Fourth, there seems to be the rather obvious problem that restricting expression that provokes “the enemy” would seem to justify imposing a broad range of restrictions. Under this approach, if the announcement that the United States was going to take an action in the Middle East led to a violent response, then the persons or persons making the announcement (perhaps the president or his press secretary) would have to be held accountable. Or, to use another example, if some people rioted in Afghanistan and said it was because American women are allowed to express opinions in public, then American women would need to be held accountable.

In light of the above, while I believe that Jones’ should not have burned the Koran, I also hold that there should be no legal restrictions placed on such actions. In any case, if God did not want the Koran burned, He surely would have prevented it from happening. As such, that seems to be a sign that God is okay with it.

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Breaking Iran

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Senator Lindsey Graham recently spoke about neutering the Iranian military. He predicted that such an operation would result in unconventional attacks against the United States (mostly terrorist operations). However, he seems to prefer that sort of retaliation to allowing Iran to complete its nuclear program.

Iran is in many ways an enemy of our own creation. While the British laid much of the groundwork with their imperial approach in the middle east, we backed the Shah and his police state. This, among other things, helped bring about the Iran of today: an Islamic state that professes hostility against America and a desire to exterminate Israel. Oh, they also want the bomb.

Of course, what was done cannot be undone, so we must look to the future to solve the problems we have with Iran. We have been trying isolating Iran and using embargoes. This seems to have had little meaningful effect and the people hurt most by the embargo seem to be the middle class (the folks most likely to make Iran more moderate). Our main foes, the Revolutionary Guard, seem to be doing quite well-they are, by many accounts, running the black market and pulling in considerable amounts of money.

One option is to “neuter” Iran as Graham has suggested. While our military is bogged down in Afghanistan and Iraq, we should have the capability to defeat Iran’s conventional naval, air and land forces. In any case, I’m sure Israel would be happy to get involved.

Of course, the obvious question is “what then?” This question was clearly not asked when we invaded Iraq and the consequences of that are quite evident. We cannot, I suspect, afford to try to occupy Iran. Smashing their military would no doubt cost us in terms of our relations with certain other countries.

Also worth considering is that with a demolished conventional military, Iran might consider relying on non-conventional means of defense or offense. Ironically, a “neutered” Iran might pose even more danger if the leadership felt the need to retaliate by providing terrorists with nuclear material. Of course, a “neutered” Iran might be sufficiently cowed and elect not to antagonize the United States.

Another option is to continue on the current path. This has served to keep things fairly stable-albeit with various incidents. This will allow things to go on as they are. While this does not seem like an optimal solution, it does seem to be a viable option.

A third option is to change the existing policy in ways that do not involve neutering. For example, the United States could push to change the sanctions so that the middle class is able to thrive better. It might, in fact, be in our best interest for that middle class to grow.

In any case, the future will ( as always) be what it will be.

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Is the 14th Amendment Obsolete?

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List of United States Senators from South Carolina
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One clause of the 14th Amendment grants citizenship to those born in the United States. To be specific, it states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

From an historical standpoint, it was intended to ensure that the southern states did not deny American citizenship to the newly freed slaves. Not surprisingly the amendment was controversial in its day and was attacked on various grounds, including some rather racist views. Once again it is generating controversy. Or, to be more precise, certain people who are very worried about immigration are making it a focus of controversy.

Leading the attack on this amendment is Senator Lindsey Graham. Being a reasonably intelligent man, Graham has made a case for reconsidering this clause.

His first argument is that the amendment served its historical purpose and is no longer needed. This argument does have a certain appeal. After all, if a law is created to do X, when X is done it seems that there is no longer any need for the law. However, it is important to consider whether the law is still needed or not. After all, many laws have been created to address specific problems and then have gone on to become a part of enduring law.

Addressing this concern, Graham notes that “Birthright citizenship doesn’t make so much sense when you understand the world as it is.” Thus, his view is that this clause is no longer needed because it has fulfilled its intended purpose and there is currently no justification for keeping it.

His second argument builds on his first by adding that the clause is allegedly being misused to the detriment of America.

To support this claim, he contends that there are  “thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so that child will become an American citizen.” While this seems like hyperbole, it is an empirical claim and subject to verification.

For the sake of the argument, let it be assumed that people are coming here illegally with the express purpose of having children. In this case, this does seem to be a matter of concern. As he says, to grant their children citizenship does seem to be rewarding them for their illegal actions.

Graham goes on to make what might seem like an odd claim: he asserts that tourists come to the US on 90 day visas so as to have children who will thus be American citizens. While I was not aware that this practice was a common one, this is also an empirical matter.

Graham’s main worry about this sort of birth tourism is that it “cheapens American citizenship. That’s not the way I would like it to be awarded.”

While I do understand his view that American citizenship is an important and valuable thing, his criticism seems to be weakened by the fact that anyone born to an American gets to be an American. Aside from naturalization, all that it takes to make an American citizens is for at least one American to impregnate or be impregnated. So, if Americans Sally and Sam have a drunken hookup at a party and Sally gives birth to Andy, then Andy is an American.

If Graham is really serious about making American citizenship more valuable, then perhaps he should propose the approach taken in Heinlein’s Starship Troopers: full citizenship must be earned by serving in the military or other suitable public service. That would make citizenship less cheap.

I do agree that the law (even Amendments) should be subject to review and evaluation to see if they are still needed or if they are actually inimical to the good of the people. However, changing an Amendment should be a matter of some gravity. It should not be done merely on the basis of a current political controversy. In the case at hand, the motivation seems to be based in the current political posturing over immigration. There are also some concerns being raised that at least some people pushing for changing this clause are motivated by racism. Since the original opposition to the amendment was often motivated by racism, this is an interesting bit of irony.

I am, oddly enough, with Lou Dobbs on this issue: the Constitution should not be changed simply “because the result may be inconvenient to some and their political views.”

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