What Rights Should We Give Terrorists?

By Joe Campbell
November 2nd, 2007

[digg-reddit-me]Behind the debates, votes, and bureaucratic battles of the past few years over civil liberties, torture, Guantanamo, terrorist tribunals, the Patriot Act, and domestic wiretapping, are two different views of how to respond to the threat of terrorism. Republicans and liberals each frame the question differently, asking two basic questions that lead them to diverging answers about the same issues.

A. Republicans

  • Question: What rights should we give to terrorists?
  • Answer: It doesn’t really matter. We need to do what is necessary to keep people safe. You shouldn’t care what we do unless you are a terrorist. (See footnote.)

B. Liberals

  • Question: How can we best reduce the risk of terrorism while preserving a free society?
  • Answer: There is no simple answer. It’s a complicated process necessitating many trade-offs and compromises and the process needs to be as transparent as possible.

While Republicans have often deflected Question B by answering Question A, their response to Question A indicates that they do not believe the two questions are related. I don’t know how many times I have been told in debates on the issues that I shouldn’t worry about them unless I am a terrorist. To consider the effect of our government’s actions gets you called a “fellow traveler” with the jihadists or more charitably is labeled “pre-9/11 thinking”. This is the essential idea of the books published by Ann Coulter and Sean Hannity, of countless columns in the National Review and Wall Street Journal, and of a large part of the Republican’s electoral success in the 2002 and 2004 elections.

Politically, Question A confers great advantages. It offers easy answers. It comforts us – “If I’m not a terrorist, what do I care?” It seems a tougher approach. Most important though, it emotionally charges the issue. “Why should we confer the rights our society guarantees on those who have no respect for these rights and who will exploit them?” It separates them from us. Question B leads to a rational, reflective discussion and no easy answers. It’s a much harder sell and has been portrayed as a sign of weakness.

Despite the political rhetoric, both questions are merely different ways of phrasing the same problem. In fact, the disagreement between Republicans and liberals centers around a single point of controversy:

Do terrorists have rights?

  • Republicans have resoundingly answered “NO!” They have even gone so far as to indicate that even if you are only suspected of being a terrorist, you have lost many if not all rights.
  • Liberals believe terrorists do have rights, although many liberals do acknowledge that terrorism presents such a challenge to our way of life that we must make some changes to our system to deal with the issue effectively.

Within the Republican framing of the issue is a single, absolutely frightening idea that undermines the very basis of our nation and freedoms: that the government confers rights upon people rather than that rights being inherent in each individual. This is a profoundly unconservative idea – a radical one more generally associated with Communism than with any American ideology. You can see this idea at work listening to the chief prosecutor for Guantanamo defend his treatment of prisoners there, in Cheney’s defense of the terrorist tribunals, in Rudy’s defense of “enhanced interrogation”, in Bush’s defense of domestic wiretapping.

“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness…”

The problem with the Republican position is that it denies the very basis for American government, one of the cornerstones of our Constitution. If you believe in the ideals encapsulated in the first collective document produced by the American nation, in the reason for the revolution that created our country, in the ideals that animated the Founders in creating the Constitution, then terrorists have rights, inherent, inalienable, and God-given. If you reject this idea and believe instead that the government grants us rights which we can then exercise – to a fair and speedy trial, to a jury of peers, to not be tortured, to be free from cruel and unusual punishment, to free speech, to freedom of assembly, to an expectation of privacy – then you have negated the very basis of our founding. This is self-evident.

What then is the rationale for the Republican position?

Simply, the Republican position is this: the terrorists have won. The terrorists’ ideas and actions make America’s liberal democracy irrelevant. We must take what steps are necessary to protect the public safety; civil liberties are only for those who deserve them. Although the President took an oath to defend the Constitution, he now must defend American lives at the expense of this old document.

Clearly all Republicans do not believe this; and many who have mouthed these lines are merely reacting emotionally and have not thought through the clear consequences of their rhetoric. This is why I believe there is still hope for this country. There are many details liberals and conservatives can work out about the balance between protecting the public and protecting each individual, between liberty and safety. But to frame the issue as the Republicans have is truly radical, and it should be recognized as such. And to act as the Bush administration has done, based on the assumption that rights are granted rather than inherent, has clearly undermined everything America stands for.

footnotes: To be fair to those who defend these various violations of liberties, there are a number of more sophisticated legal, moral, philosophical, practical, and strategic arguments that have been made in defense of each individual action, and in defense of the Bush administration’s approach as a whole. I believe these arguments are for the most part disingenuous, based on moral relativism, and just plain wrong. But I won’t be dealing with them in this post. Instead, I am trying to start with the first issue: to set the terms of the debate. The Republican response is presented here in the most common form it appears in public debate.

Also, I should note that I chose the terms Republican and liberal instead of conservative and Democrat because I believed they were the most accurate terms to use. I do not believe many Republicans today are truly conservative – instead, they are reactionary and authoritarian. Many of the Democrats have gone along with the Republican framing of the debate, and so I have differentiated the liberals from the Democrats.

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