“Rights for Terrorists”: the Republican Virtue of Universal Safeguards

Unfortunately, I’m running short on time, so this post will have to be the beginning of an idea, to be explored in more depth later. In brief, then:

This past Sunday, Senator Jim DeMint (R-S.C.) squared off against Claire McCaskill (D-MO) over Obama’s response to the (thankfully foiled) Christmas Day airline bombing. DeMint appeared to repeat, as if by rote, the best of the last ten years’ of Republicans’ talking points, rather than actually engaging Senator McCaskill on the merits. Consequentially, McCaskill acquitted herself quite well.

Only one point bears further response: DeMint’s oft-repeated argument that terrorists do not deserve to be treated with any of the rights accorded American citizens.

This argument mistakes the place of rights in American society. We as citizens do consider our constitutional rights to be entitlements, holdovers from that sovereignty ceded  to the United States at the Constitution’s ratification. That’s partially correct, but it’s not the whole picture. While ancient notions of rights did limit them to citizens (Paul’s “civis Romanus sum” wouldn’t have worked were he not a citizen), American democratic theory adds a further gloss. Rights don’t exist simply because citizens deserve them, but because oppressive government is an evil, the restraint of which is its own virtue.

I don’t speak in the legal sense, but in the rhetorical. The Founder’s mortal fear of government transcended concerns for citizens alone: government power is a danger that, directed externally, still threatens those who reside within its protection, for a minor change in the target of government power is the only difference between military prowess and tyranny. It’s for that reason that the Founders, who knew how to contain rights to citizens alone (see U.S. Const., Art. IV, § 2, cl. 1), drew the Fifth Amendment’s due process clause to sweep within it any “person” (“No person shall be… deprived of life, liberty, or property, without due process of law”).

The Magna Carta had the seeds of this idea:

To no-one will we sell or deny of delay right or justice.

And although medieval England, a deeply hierarchical society, probably didn’t intend those words to be taken literally, we should probably strive to improve on feudal notions of law.

As a matter of practicality, we can’t afford non-U.S. citizens all the rights of citizenship. No-one argues that we should. But the Founders’ conception of rights, and the danger of government power, expressly disclaims a world in which a government is only a danger to its citizens when it acts directly upon them. I’ll develop this thought more later.

11 comments

  1. We would likely be in huge trouble if the detainees were citizens of some Western European nation, because those nations guarantee roughly the same rights for their citizens that we do for ours. Even though we say these are inalienable rights, these arguments about detainees imply that we believe them not to be universal. You can do whatever you like to someone from a lawless or oppressive nation because their government doesn’t believe they have rights.

    And yet we’ve been trying to spread democracy in the Middle East (or so they say) to secure these rights for those people. The discrepancy is, I think, because Americans, especially on the right, like to forget the rights that pertain to the guilty and the accused.

  2. ABSOLUTELY, Kris. That’s a point I intended to make in the last paragraph, but forgot. If the “Bush doctrine” is to spread democracy, that starts by showing them what democracy means with our deeds, not just our words.

  3. Ames,
    But you forget, the “Democracy” that the BUsh/Obama doctrine seeks to spread is founded on American Exceptionalism, which, inherently, denies human rights to those not fortunate enough to be Americans.

  4. I would take Bush’s uniqueness farther (and excise Obama from the definition): Bush’s approach to exceptionalism is different too. To the founders, America was an “exceptional” nation because she was blessed with good fortune, and the fulfillment of its exceptional goal was to be a city on a hill, and spread both liberty and hope to the dark corners of the world. Bush’s version of exceptionalism is “we ARE better, already, and can thus do whatever we want.” I reject that, I know you do, and I think Obama does too.

    1. I do not agree that Mr. Obama rejects this premise. His actions – expanding an unwinnable and no longer necessary war in Afghanistan (because al Quaeda has moved to Yemen), indefinitely detaining known innocent foreigners, invoking the state secrets priviledge to cover mis-deeds of his predecessors, continuing to operate warrantless wiretapping programs domestically – all say that on some level he has embraced this doctrine. Too bad for us liberals too – we won’t soon see anyone as charismatic as he is.

  5. Shortened, the Founders’ exceptionalism was aspirational; Bush regards the job as done, thus entitling us to reap the rewards of empire.

  6. Interesting how you might suggest that not everyone should be granted the full rights accorded to citizens of the USA, and how others think that you can give rights to some (western Europeans) but not others. You all might want to read up on the Universal Declaration on Human Rights – to which the US is a signatory. Article 7 says, quite plainly:
    “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
    I’m pretty sure that refers to ‘terrorists’ just as much as it refers to citizens.
    While you are there, you should read the whole declaration – you might find that it has some interesting things to say about other things the USA seems to have forgotten about lately.

  7. Gotchaye · ·

    Mandas, I don’t think Ames is making a very controversial point here. And, whatever the text of the UDoHR, it’s not meant to force countries to treat everyone the same regardless of citizenship, nor is it meant to force countries to treat the citizens of all foreign countries equally. The US government will go further to secure the release of American POWs than foreign POWs. Only US citizens get to vote in US elections. Only US citizens can serve in many US political offices. And treaties with other countries, or just political alliances, can guarantee that we treat their citizens better than we otherwise would. That’s not to say that we can do whatever we like to citizens of certain countries, but just that there’s some space between the minimum considerations for foreign nationals required of us and the considerations the US government extends to US citizens.

    I don’t believes that Ames is saying that foreign suspects can be treated significantly worse than American suspects, but this is because rules for the treatment of suspects have a strong moral basis, whereas the rules that vary based on citizenship have a purely political basis.

  8. Steve Jeffers · ·

    Regardless of whether the non-US citizen in the US is covered by the Constitution or not – and I’ve never seen anyone argue that they weren’t until ten days ago – isn’t it indisputable that the would-be torturers and indefinite detainers *are* covered by the Constitution?

    It’s not the prisoner who’d be violating the Constitution if he was denied due process, it’s the people imprisoning him.

  9. Sorry Gotchaye, you appeared to miss my point, and you also appear to miss the point of the declaration. It is VERY specific – everyone is equal under the law. That means EVERYONE is entitled to the same due processes, no matter whether they are a citizen of the country in question or not. You simply cannot try a foreign national in a court, but deny them the same processes available to a national. If you did that, it would speak volumes about your national integrity.
    No-one is arguing that a foreign national would have the right to vote or hold office etc, but when it comes to legal process, there should be no discrimination at all.

  10. […] American exceptionalism (but see our criticisms of their limited view of the concept, here, here, here, and here, among others), elements of that faction seem peculiarly quick to dispense with one of […]

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