Sunday, August 26, 2012

LD 2012 Due Process Philosophy

For part one, click here.
For links to other LD topics, click here

"Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man."
—Thomas Hobbes, Leviathan, 1651


An examination of the philosophy for the 2012 Sep/Oct LD topic can literally keep you busy for months.  It is rich with opinion on both sides of the debate and has implications in the study of human nature, the duties of nations, international relations theory, and good ole' fashioned right and wrong.  There are dozens of paths the debater can follow.  I would like to expose just a few in this post and reveal some interesting sources which you should take the time to read.  The knowledge one can gain from these links is incredible.  In a follow-up post I will take to the critical side and talk about the many critiques which are begging to be examined.  For now, Chomsky is as critical as we go since even he is too radical for many conservative judges.

The Manifestations of War On Terror
Those of you who debated LD last year are sitting on a treasure trove of applicable elements suited to this debate, assuming you may have researched and debated the Targeted Killing topic.  Following the 9/11 terrorist attacks, the U.S. characterized its position as victims in a global war of extreme necessity in order to protect not only the security of the nation but its way of life.  This characterization justifies extreme actions resulting in the suspension of certain liberties and rights, including, as it can be argued, due process protections.  As a result of the "modification" of the principle of due process we are witnessing three principle manifestations in the form of targeted killing, extraordinary rendition and lengthy incarcerations of non-citizens accused of terrorism.  Therefore, I would expect a lot of debate to center around these elements of the War on Terror with respect to this topic.

Aff and Neg Views

Following is a sampling of various philosophical points of view.  They may flow Aff and they flow Neg and in some cases, they can be spun in either direction.

Harvard 2012:
Acts of terrorism against states generate such emergencies, as they constitute “sudden and extreme occurrences.”  During such circumstances, executives may claim more power than they would otherwise be permitted to exercise. Because the exigent nature of emergencies requires immediate action, the executive has been known to be able to take action for the public good—this is known as the “Lockean prerogative.”  John Locke insisted that in emergencies, the government had to have legally unconstrained power to “act according to discretion for the publick good, without the prescription of the Law, and sometimes even against it.”

Ross 1980:
My account, of course, differs from the "libertarian" views epitomized by Robert Nozick in his book, Anarchy, State, and Utopia,7 because I accept the premise of constitutional law that every individual substantive liberty is, in principle at least, subject to coercive governmental invasion (even life, liberty, and property) and that all liberty that is not specially protected in the formation of a government may be invaded by the government for the public welfare and infringed for less serious reasons than one individual would have to have for coercively invading the life, liberty, and property of another person. Thus there is a crucial difference between a contract theory of the State that is not a "compromise of natural liberty" theory (Nozick's) and one that is (mine).

We can define a "state of nature" as a hypothetical state of mankind in which no competent adult's moral liberty has been compromised; that is, no system exists in which moral liberty may be invaded for less than overriding moral considerations. This may be described as one's state of (logically) antecedent moral liberty, a state where the range of one's moral liberty will be both larger and smaller, in various respects, than the condition of consequent moral liberty, after a government is formed. By definition, and for independent reasons to be mentioned, there is no legitimate government in such a state: no coercive power has been entrusted to achieve the common good by means of restraints upon the antecedent moral liberty of individuals. That does not rule out the possibility that there may be corruptions of government in such a state; there may be individuals who habitually and unjustifiably invade the moral liberty of others, for instance, by making them slaves.

The fact that some relatively defective institutions are called "governments" no more constitutes a counterexample to the conditions of "entrustment to attain the common good through coercive restraints upon antecedent liberty" than does the fact that a tree rotting on the ground is not alive constitute a counterexample to a definition of trees as a certain kind of living non-sentient thing. The formation of a government, whether by contract, consent, acceptance, or other convention, consists in the entrusting of coercive power for achieving the common good to some one or group with that role.

The coercion must be directed to the achievement of goods which are in the interest of all and which cannot, as a matter of practical necessity, be achieved by individual action or through mere cooperation. Some of the things which are in our most basic interest, like bodily safety, freedom from pain, and sufficiency of food, are goods of this sort. Thus, the authority of government arises from the necessity of its function to fulfill basic natural interests of all its subjects. The practical necessity of coercion which creates restraints upon antecedent moral liberty, to achieve basic natural interests of all, is the morally compelling individual interest shared alike by all which justifies the compromise of some of one's antecedent moral liberty.

For a government cannot have coercive power effectively if each application of coercion must be individually justified by the presence of a compelling public need so insistent that failure to realize that need will in some significant measure be a failure to govern at all.
So, the very existence of government necessitates a compromise of liberty which, among competent adults, is morally fundamental: the compromise permits instances of invasion where in that particular instance that public interest does not have to constitute an overriding moral consideration or a compelling public interest, though there is a "compelling" interest of all in the existence of the scheme of individual invasions.

Fiala 2002:
Terrorists are not merely pathological. They are political agents who utilize what I want to call a calculus of terror. This is the negative caricature of a utilitarian or hedonic calculus. The calculus of terror is designed to bring about certain ends. It is a rational decision procedure based upon the insight that terror disrupts social structures. The terrorist is not interested in causing pain per se: terror is not simply causing pain or killing. Rather, the terrorist is interested in using the threat of pain in order to antagonize a people and destabilize a social structure. Terrorism is evil insofar as it aims at destabilization and disruption. It is insidious in that it destabilizes and disrupts by creating an atmosphere or mentality of fear. It is significant, for example, that the September 11th terrorists succeeded in disrupting the lives of hundreds of millions of people in the Western world by the "mere" hijacking of four airplanes resulting in the deaths of over 3,000 people. In strictly utilitarian terms, terrorism is an economical means of political activity. In this sense, political agents who use terrorism are not pathological at all, but are quite rational: they know how to do cost-benefit analysis in order to maximize the results of their activity.

Chomsky 2012:
The concept of due process has been extended under the Obama administration’s international assassination campaign in a way that renders this core element of the Charter of Liberties (and the Constitution) null and void.  The Justice Department explained that the constitutional guarantee of due process, tracing to Magna Carta, is now satisfied by internal deliberations in the executive branch alone.  The constitutional lawyer in the White House agreed.  King John might have nodded with satisfaction.

The issue arose after the presidentially ordered assassination-by-drone of Anwar al-Awlaki, accused of inciting jihad in speech, writing, and unspecified actions.  A headline in the New York Times captured the general elite reaction when he was murdered in a drone attack, along with the usual collateral damage.  It read: “The West celebrates a cleric’s death.” Some eyebrows were lifted, however, because he was an American citizen, which raised questions about due process -- considered irrelevant when non-citizens are murdered at the whim of the chief executive.  And irrelevant for citizens, too, under Obama administration due-process legal innovations.

Presumption of innocence has also been given a new and useful interpretation.  As the New York Times reported, “Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.” So post-assassination determination of innocence maintains the sacred principle of presumption of innocence.

It would be ungracious to recall the Geneva Conventions, the foundation of modern humanitarian law: they bar “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The most famous recent case of executive assassination was Osama bin Laden, murdered after he was apprehended by 79 Navy seals, defenseless, accompanied only by his wife, his body reportedly dumped at sea without autopsy.  Whatever one thinks of him, he was a suspect and nothing more than that.  Even the FBI agreed.

Cram (undated):
Unsurprisingly, the various proposals to re-calibrate the liberty/security scales in favour of enhanced security have in turn generated considerable controversy. A general anxiety underpinning a significant strand of the critical responses to Dershowitz, Ignatieff and others reflects a Lockean concern that governments may be tempted in the name of greater security to abuse their powers, thereby compromising their purported liberal democratic credentials.
The argument proceeds roughly thus: If we allow torture (or infringement of another core right) to take place in a carefully delineated, exceptional circumstance, we will in all likelihood be pressed into accepting further ‘exceptional’ circumstances that permit further rights curtailments. Locke himself foresaw that the very same powers that might be granted to government to safeguard the state from the enemies of the people might in turn be invoked against the government’s enemies.  In the present security-conscious climate, what is at risk are the defining commitments and overarching constructs of the liberal democratic state. Cole and Dempsey put it thus:
In responding to terrorism however, we must adhere to the principles of political due process and the protection of privacy that constitute the core of a free and democratic society.

Similarly, Kofi Annan and others have contended that human rights values must remain an integral part of states’ counter terrorism policies.  Academics endorsing this line have drawn on Locke’sTwo Treatises on Government to reject the apparent antithetical nature of the relationship between security and individual liberty. Teso´n for example has argued that measures intended to confer greater security are only justified to the extent that they promote the ‘liberal’ constitution and its values. Security can never be an end or value in itself.

Rather, security and order are needed in an instrumental sense to enable individuals to pursue autonomous life plans or to safeguard natural rights. The critical error made by those adopting a Hobbesian perspective is that security is elevated to the level of an intrinsic good that exists on an equal footing with individual liberty and which, when threats arise, must take precedence over rights claims. Teso´n reminds us that absolute security could only ever be attained in a police state and that liberals accept the condition of non-absolute security because of a preference for a substantial degree of individual freedom.

On his account, there may be a need for Hobbesian control (and a concomitant reduction of personal freedom) in the wholly exceptional scenario where a ‘total collapse of the social order’ is imminent, but there is scant evidence to suggest that liberal democracies have faced any such severe peril on September or on any date since.

Link to critiques of due process

Sources used:

Robert P. George, The Natural Law Due Process Philosophy, 69 Fordham L. Rev. 2301 (2001), vol69/iss6/4

A Natural Rights Basis for Substantive Due Process of Law in U. S. Jurisprudence
Author(s): James F. Ross
Source: Universal Human Rights, Vol. 2, No. 2 (Apr. - Jun., 1980), pp. 61-79
Published by: The Johns Hopkins University Press

Nickel, James, "Human Rights", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.)

The Institute for Philosophy and Public Policy
School of Public Affairs, University of Maryland
Volume 21, Number 4 (Fall 2001)

Due Process Protections in the War on Terrorism: A Comparative Analysis of Security-Based Preventive Detention in the United States and the United Kingdom
Harvard College
March 2012

Fiala, Andrew (2002) "Terrorism and the Philosophy of History: Liberalism, Realism, and the Supreme Emergency Exemption,"
Essays in Philosophy: Vol. 3: Iss. 3, Article 2.

The Historical, Political, and Diplomatic Writings of Niccolo Machiavelli
Christian E. Detmold
"The Discourses" book 3
Machiavelli 1510
"For where the very safety of the country depends upon the resolution to be taken, no considerations of justice or injustice, humanity or cruelty, nor of glory or of shame, should be allowed to prevail. But putting all other considerations aside, the only question should be, What course will save the life and liberty of the country."

Destroying the Commons How the Magna Carta Became a Minor Carta
By Noam Chomsky 2012

Ian Cram
Terror and the War on Dissent
Freedomof Expression in the Age of Al-Qaeda

A Utilitarian Argument Against Torture
Interrogation of Terrorists
Jean Maria Arrigo 2003
Project on Ethics and Art in Testimony, Irvine, California, USA

XXII World Congress of Philosophy Proceedings
(2010, forthcoming)
Dr. Rodney G. Peffer, Department of Philosophy, University of San Diego

Our Hope for Justice: Aristotle, Hobbes, and the War on Terror
PubliƩ le 1 avril, 2008 | Pas de commentaires
Par Michael N. Di Gregorio

Royal Netherlands Army

A Critique of Exceptions: Torture, Terrorism, and the Lesser Evil Argument
Andrew Fiala 2006
California State University, Fresno

1 comment:

  1. THANK YOU!!!!!!!!!! whoever posted this has made my life so much easier=]
    lots of love---- fellow debater


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