There is an outrageously poor argument being used to defend the Guantanamo detention facility these days. A recent example of it was uttered by Sean Hannity.
They declared war on us and we're fighting a war and we know there is about 60-some odd detainees that have gone back to the battlefield. Why for the first time ever would we give rights to enemy combatants?
See, Crooks and Liars, Hannity suggests Christianity compatible with torture.
First, that which can be taken or given away is not a right.
Sean Hannity does not own my rights, or the rights of any other human being. Therefore, Sean Hannity does not have the authority to give to people - or to take away - my rights, or the rights of any other human being.
If we accept Hannity's view of rights, then America was wrong to break from England, was wrong to write in its Declaration of Independence that people have inalienable rights, and was wrong to establish a Constitution whose purpose was to protect the rights of the people.
Instead, under Hannity's theory of rights, a right only exists if somebody in authority sees fit to respect that right, and ceases to exist as soon as the authorizing power withdraws it. This is a theory of rights that any tyrant would love to embrace - and is directly opposed to the theory of rights that was put forth by those who created this country.
Now, I have some disputes with a theory of rights that is now well over 200 years old. However, I hold that one of the things that the founding fathers got right is the idea that a right is not something owned to the likes of Sean Hannity, to be handed out or given away at his pleasure.
What the founding fathers got right was the idea that rights exist as a matter of natural fact. A person can respect the rights that others have as a matter of fact, or he can violate those rights. However, he lacks the power to create or destroy those rights. If he respects the rights of others, he is a decent and moral human being. If he violates those rights (or calls upon others to violate them in his name), then he is evil.
Second, I can use the same argument Hannity uses to "justify" the indefinite imprisonment of people in Guantanamo Bay to "justify" anybody's imprisonment (even yours) without a spot of evidence that you have or will do anything wrong.
All I need to do is to round up 1000 random individuals – let's make them almost exclusively male, just for fun. I hold them for 2 to 4 years under brutal conditions that includes torture and other forms of abuse. I deprive them of opportunities to establish a peaceful life for themselves – destroy their families and their civil relationships. Then, I release 800 of them back to civilization.
Two years later, I reveal that 60 of those 800 have committed some act of aggression.
From here, I argue that none of the original 1000 people should have been released, and that no future detainee (even you) should ever be released. I would not need any evidence of guilt on your part. Nor would you have any right to a trial whereby I would be obligated to present my evidence against you. The only evidence I need to justify keeping you locked up indefinitely is the act that somebody else was released, then he went on and committed some offense.
This type of reasoning is perfect for giving tyranny a secure foundation. The tyrant need not make any use of courts, or evidence, or to provide for any type of due process. Any time it is true of any prisoner that, "If I release you, you will have the opportunity to commit some offense," then one is authorized to keep the prisoner behind bars. And, since this is always true, there is no such thing as a person who does not deserve to be behind bars.
You can commit an offense at any time. I cannot predict with absolute certainty that you will not. Therefore, in the name of security, you should be locked up. I do not need to have any evidence against you. All I need is to know that, if you are not locked up then, in the next 5 years, you might commit an act of violence, and I have all the authority I need to lock you up.
That, according to the Sean Hannity Theory of Rights. A theory, by the say, that seems these days to be quite popular among Republicans who, somehow, hold the wholly contradictory belief that they best represent the values of the founding fathers.