openspace4life

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

- Benjamin Franklin

Central to civilized law is the notion that a person cannot be held without a charge and cannot be detained indefinitely without a trial. These principles date back to Greco-Roman times, were developed by English common law beginning in 1215 with the Magna Carta, and were universalized by the Enlightenment in the century before the American Constitution and Bill of Rights were fought for and adopted as the supreme law of the land.

For more than two centuries of constitutional development since then, the United States has been heralded as the light to the world precisely because of the liberties it enshrined in its Declaration of Independence and Constitution as inalienable. It now seems as if the events of 9/11 have been determined to be of such a threatening magnitude that our national leaders feel justified to abrogate in their entirety the very inalienable principles upon which our Republic was founded.

- Jim Garrison, "Obama's most fateful decision," The Huffington Post December 12, 2011

“The fact that I support this bill as a whole does not mean I agree with everything in it,” Mr. Obama said in a statement issued in Hawaii, where he is on vacation. “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.” . . .

The president, for example, said that he would never authorize the indefinite military detention of American citizens, because “doing so would break with our most important traditions and values as a nation.”

- Mark Landler, "After Struggle on Detainees, Obama Signs Defense Bill," The New York Times December 31, 2011

When thinking about issues that could lead to severe concrete impacts on people like me in the near future, I find it easier to focus on abstract philosophy, rather than imagining specific futures such as one in which everyone associated in any way with the Occupy movement gets thrown into massive military internment camps and brutally interrogated. So here are my general thoughts on the concept of freedom itself. (I've posted on this topic twice before.)

The ideal of "freedom for all" runs into a paradox almost immediately. After all, one person can use his/her freedom to limit other people's freedom, for example by imprisoning, enslaving, or killing them. To prevent this and preserve "freedom for all," we need to limit everyone's freedom by declaring such acts illegal. Limiting freedom to prevent people from limiting freedom!

Well, actually, this seems simple and sensible when you write it a different way: You're free to do anything that doesn't limit someone else's freedom. But there are many ways to break this rule. For example, dumping pollution into the air limits people's freedom when they breathe it in and get sick, because a sick person is less capable than a healthy one and therefore has fewer options. The problem is compounded if they then have to spend much of their savings on medical care, since your range of choices is heavily dependent on how much money you have. Thus, there is actually a libertarian argument in favor of environmental regulations.

Taking such examples too far leads to obvious absurdities. You have to be free to take up space, even though that limits other people's freedom to stand on the spot you currently occupy. And of course you have to be free to criticize the government, even if that slightly reduces their effectiveness in enforcing the laws that prevent people from limiting each other's freedom. (That said, the Occupy movement's insistence on doing both of these continuously for months, in public spaces that are normally available for many other uses, is harder to justify.)

Now, what if the U.S. government believes that an American citizen is planning a deadly terrorist attack? If the evidence of this was lawfully obtained and is reasonably solid, the police have every right to arrest him, charge him with a crime, and put him on trial. This allows the man to go free if the government made a mistake; his freedom will only be limited for a short period, unless he's found guilty of a plot to commit mass murder, using public evidence and arguments. But let's say the government doesn't think it can build its case before a jury, maybe because the evidence was obtained using an unconstitutional warrantless search, or because it involves classified information and revealing that information would somehow compromise national security. So it decides to classify the man as an "enemy combatant" and have the military lock him up indefinitely.

On the one hand, if the man is guilty, limiting his freedom seems better than letting him go free, allowing the attack to go forward, and eliminating the freedom of the people who end up dead as a result. But on the other hand, from the perspective of the public at large, it looks like the government may have made an unfounded accusation against an innocent man, and imprisoned him for life for no good reason. Maybe he was a prominent critic of the government whose criticism was becoming inconvenient, or maybe some government official just had had some private grievance against him.

So unless the government can stomach having a public trial, or find some other option that prevents the attack without violating anyone's civil liberties, we will be faced with an apparent failure of the central principles that make this a "free country." The fact is that indefinite detention without trial means we have no way to know whether the government is saving us from terrorism or turning into a fascist regime--or both. That's why we must fight hard to restore our basic rights--because otherwise, we'll never again be able to trust the people who are supposedly "defending our freedom."