Intrinsic Rights? Hogwash
A South African Rhodes Scholar has used my post regarding the Gitmo prisoners as an example of what he calls the "sad" decline in the American sense of justice post 9/11:
Well, at least the author thinks that the detainees should have access to legal process, which is more than the Bush administration is willing to grant them. But, more seriously, firstly, rights are not extended to people on the basis of whether they 'deserve' them or not. Rights are intrinsic; humans have rights by virtue of being human, not by virtue of perceived moral character. One does not give someone a right out of a sense of magnanimity; rights are owed. Secondly, what on earth happened to the presumption of innocence, one of the most fundamental principles of criminal justice? How can the author claim to have 'little sympathy' for the detainees when their guilt or innocence has not been established through the judicial process?
If "rights are intrinsic", then define them. Come on, I'm really interested to hear all about my instrinsic rights. Which rights are these? Who gets to define them? What enforcement mechanisms? Don't waste your time. It's a bunch of pseudo-ethical mumbo jumbo that has little meaning in print and even less in practice. A system based on "instrinsic rights" extends protection only as far as the judge, jury, and executioner want.
Instead, in a real democracy, with real concerns about liberty, we have various legal documents, actors, and interpretations that define the rights of particular individuals. In the American system, citizens and non-citizens have different rights, as do those captured in America and not.
The full protection of the United States judicial system is NOT an intrinsic right for non-Americans captured in warfare abroad, it never has been, and I personally hope it never becomes one. The 4th Circuit didn't get everything right in Hamdi, but at the very least it is surely correct that U.S. civilian courts cannot apply judicial oversight to military operations in an active and ongoing theater of combat.
The Geneva Convention operates the same way, laying out specific criteria for who is subject to its protections, and who is not. Though the detainees ought to face preliminary tribunals to determine their status, it seems clear that at least some will fall outside the protection of that treaty.
What intrinsic rights do those people have? A right not to be tortured? Maybe that's intrinsic, but it's also codified in the Torture Convention. Codified for a reason, because all this talk of instrinsic rights will get you absolutely nowhere, except perhaps into the good graces of a DPhil candidate at Oxford.
UPDATE: Check out Micah Schwartzman's response, and my response to that.
