Apparently, Obama is considering the possibility of shutting down Guantanamo Bay prison (as he should). The plan, as reported in the press, is to ship home those who have been cleared for release and bring the rest of the prisoners into the American court system to stand trial.
His plan also involves creating a special court system for those instances in which a person's guilt has been established through covert operations. For example, civilian courts require that an accused prisoner has the right to confront his accusers in open court. This would mean bringing covert agents to the United States, putting them on the stand, thus blowing their cover and revealing the methods they use to acquire useful information. To avoid these outcomes, Obama is supporting the creation of a new type of court that still "is and appears to be fair."
However, a question immediately comes to mind: Don't we have the same problem with respect to our attempts to combat organized crime and domestic terrorism? As the government goes after drug cartels (many of whose members live and work in other countries), it uses undercover agents and special ways of collecting intelligence that it may not want to reveal to the drug cartels themselves. If we set up these special courts to hear cases brought against suspected terrorists, then is there any reason not to use them against drug pushers, organized crime syndicates, or anybody else?
Investigations of government corruption often involve a lot of under-cover work. Investigators pose as foreign agents or business executives whose purpose is to offer a bribe to some legislator or regulator. Certainly, these investigators have reason to keep the identity of their undercover agents secret, as well as keep secret the methods that they use to acquire evidence that the accused is guilty. So, perhaps, allegedly corrupt legislators should be hauled into this special court and be tried there, rather than in the public courts.
In fact, let us imagine that the government finds a new way to catch those who speed on the roadways. It sets up secret cameras and other detection equipment. One day, the police come and arrest you for speeding. You ask for the proof that you are guilty, and the arresting officer says, "We are not inclined to reveal the methods by which we know of your guilt. Just be assured, we know that you are guilty."
The problem with this system is the ease at which the government can shift from arresting those who are guilty, to arresting those who are innocent but who the government does not like. The problem comes when you write a blog posting or organize a demonstration at the court house or campaign against an incumbent. Since the government does not have to provide any evidence that you are guilty, the government will have the liberty to arrest you at will and merely assert that the evidence exists.
How do we avoid that type of outcome?
Do we trust the government? Do we say, "The people in power will never abuse that power for personal gain. They will never actually use this opportunity to arrest, convict, and imprison people without evidence since they have gained the liberty to keep their evidence secret." Of course no government, or no political leader, would ever do that. It is not as if you can look back in history and find that this type of abuse of power has been by far the norm, rather than the exception.
Of course, I am being sarcastic.
The very reason why the founding fathers argued for public trials, for the right of the people to confront their accusers, for the presumption of innocence until proven guilty, is because they had a great deal of experience with governments who arrested the innocent under false charges and locked them away as a matter of political convenience. It was their way of taking this power away from governments.
They said, "Okay, you can't do that any more. You must present evidence. You must present it to a jury made up of subjects – not rulers. You must convince them beyond a reasonable doubt that the accused is actually guilty of the crime, that this is not some trumped-up charge you are making for reasons of political convenience."
We can extrapolate the concerns of the founding fathers into this type of scenario:
An oil company executive whose company wants to build a pipeline through some territory is having trouble with a local village whose people are demanding a high price for the use of their land. The company goes up to the vice-President – some Cheneyesque character – and says, "We would be grateful if you would remove this obstacle to our pipeline." So, they go in and capture this prisoner on trumped-up charges of terrorism, They 'convict' him using secret evidence, and the company gets to build its pipeline.
Or we may consider the possibility of an administration who sees a threat in an up-and-coming politician out of the midwest. In order to end that politician's career, they arrest him and convict him on evidence that they have no need to show to anybody else.
What is to prevent something like that from happening?
We need to ask if we are going to have one system of justice for Americans who are accused of terrorism and a different system for foreigners? The problem here is good reason to deny foreigners certain benefits of an open trial, then those are equally good reasons to deny the benefits of an open trial to American citizens. If there are good reasons to give the benefits of an open trial to American citizen then those are equally good reasons to give the benefits of open trials to foreigners.
We may be in the habit of denying foreigners the same justice that we give Americans. However, there is no principle of morality that justifies it. You cannot come up with a moral argument that shows that a person born on foreign soil has fewer "inalienable rights" than a person born on American soil and can, as a result, be treated worse for that reason alone.
We could, perhaps, argue that these are not moral rights – that these are political rights granted by government with no other foundation. However, if we make this argument, then we make the argument that Americans do not have these moral rights either. Whatever the government has the moral permission to do to others as a matter of political convenience, it has the moral permission to do to Americans as a matter of political convenience. If it is not a moral crime to refuse to apply these principles of justice to foreigners, then it is not a moral crime to refuse to apply these principles of justice to Americans.
These are our only two options.
These principles of justice are moral claims, in which case they apply to foreigners as much as they apply to Americans. Or they are mere political contrivances, in which case they can be as freely taken from Americans as we allow them to be taken from foreigners.
Anything else is hypocrisy.
Anything else is immorality and injustice – is the policy of somebody with s serious lack of morals.