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Friday, March 14, 2008
Limiting the Charter
A federal court ruled that the Charter of Rights and Freedoms does not apply to Taliban members captured in Afghanistan. This is surprising. And a little troubling.
Documents like the U.S. Constitution make either an explicit or implicit claim about people. Not "citizens" or "members" in this or that group, but about people in general (Objectivists might call them people qua humans, or something like that). The preamble doesn't limit itself to U.S. citizens, it speaks about all human beings all over the world. The rights to life, liberty, and pursuit of happiness are supposed to be blanket, natural rights that all of us have in virtue of the mere fact of being human.
But the Constitution, in spite of its universalist language, binds only those who represent it and the various official offices of power in the U.S. The Constitution is not binding on the Prime Minister of England or Canada, for instance. They are subject to the terms in the Constitution when they are in an American jurisdiction, but they do not have to uphold it in their own jurisdictions.
This is why (mis)treatment of detainees by the U.S. government in Guantanamo is at least prima facie contrary to the Constitution. And why, you might think, Canadians who have captured Taliban soldiers are required to treat them in accordance with the Charter. The rights afforded us in the Charter and the U.S. Constitution are not contingent on our membership in anything other than the human race. They are contingent on you being dealt with by someone sworn to uphold those rights, but, other than that, it seems strange to think that it matters whether you're a member of the Taliban, or Polish, or a woman, or anything else, for that matter.
Posted by P.M. Jaworski on March 14, 2008 in International Affairs | Permalink
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Comments
All three of those "Preamble" rights--liberty, the pursuit of happiness, and in extreme cases, life, have long been subject to revocation a) after due process of law; or b) in extreme situations where lesser measures are deemed inadequate to protect the safety of the public.
Take the case of an armed suspect shot and killed by a police officer. He didn't get a trial. He didn't get a lawyer. Nobody read him his rights. But the state killed him anyway, because it HAD to; the risk to others was too great to do otherwise.
Take the case of someone who is convicted and sent to prison. His liberty is forfeit, at least for the duration of the sentence, as is his right to live his life the way he would choose. The whole idea of jail would, on the surface, seem contrary to the ideals of the Charter. We do it anyway because we've learned that society cannot sit still for certain acts, unless it's willing to endure more of the same.
There is NO right so inalienable, so universal, so poetic, that it cannot be forfeited by the conduct of the individual. And remember, there is NO right without responsibility.
Posted by: Shane Matthews | 2008-03-14 7:25:39 AM
"They are contingent on you being dealt with by someone sworn to uphold those rights, but, other than that, it seems strange to think that it matters whether you're a member of the Taliban, or Polish, or a woman, or anything else, for that matter."
Or an illegal immigrant? :-)
Posted by: Terrence Watson | 2008-03-14 8:42:31 AM
Jaws,
Actually, thinking about it, the 14th Amendment says that states can't deprive persons of "life, liberty, or property," without due process of law. This seems to support what Shane is saying to an extent: there are times when it is legitimate to deprive a person of liberty, his life, etc.
But there is something to your point, too: while a person may be deprived of his liberty, it is not clear that he can be deprived of his _right_ to liberty. There is the difference between:
a) A had a right to x at time t, but through his actions no longer has a right to x at time t+n. At t, B had an obligation to not deprive A of x. At t+n, B no longer has that obligation: at t+1, B has absolutely no (moral?) reason not to deprive A of x.
And:
b) A has a right to x at all times. Also, at all times, B has an obligation to provide a safe community for A and others. Through his actions at time t, A demonstrates that he will likely be an obstacle to B's fulfillment of his obligation. While B is obligated to not deprive A of x (call this O1), he also has an obligation to protect the security of the community (call this O2). If O2 is weightier than O1, then it may be all right (on balance) for B to violate A's right to x.
This doesn't mean that O1 vanishes; it leaves a moral residue, and while B is obligated to protect the community, he has to do so in the way that is _least_ damaging to A's right to x. A's right never disappears, because it continues (or should continue) to exert a pull over B's behavior, even while fulfilling his other obligations.
...
It is this continual moral pull that leads some of us to worry about how illegal immigrants are treated, incidentally...
Anyway, Jaws, I'm assuming you were thinking more along the lines of (b), no?
Terrence
Posted by: Terrence Watson | 2008-03-14 10:03:20 AM
I beg to differ. The writ of any countrys law ends at its borders. If we enforce our law in Afghanistan we are essentially usurping Afghani sovereignty, which is causus belli. We are trying to foster the growth of the Afghani government including the law enforcement and justice systems. If we impose our law we are de-legitimizing those systems and treating the Afghanis like savage children who can not be trusted. You do realise that in previous wars members of the Taliban, if their surrender was accepted, would have been convicted of being 'spies and saboteurs' and shot at dawn by soldiers of every country?
It should be noted that 'life, liberty and the pursuit' was obviously not meant to apply to the slaves in the USA. Some of the founding fathers owned slaves long after signing. So saying it applies to every person on the planet is a bit of a stretch.
Posted by: C A Ruttle | 2008-03-14 10:15:58 AM
In the nasty business of war, only the victors have "rights". If you are, as a non-uniformed combatant, going up against a uniformed army governed (more or less) by the Geneva convention and that army's codes of conduct you will either win, die or be subject to the whims of that army. To date Guantanamo is likely the most humane whim in the history of warfare.
If the business of war becomes an extension of a state's domestic legal structure, not that I'm opposed to dumping thousands of lawyers on battle fields, the professional soldier becomes irrelevant and civilians will increasingly become the fodder of war.
It was JAGs that saved OBL on several occasions when he was in the sights of US forces under Clinton.
Libertopia doesn't exist in a school yard or battlefield!
Posted by: John Chittick | 2008-03-14 11:02:01 AM
Well said C A Ruttle and John Chittick. The court ruling only makes sense. In fact it was utter non sense when it was decided that the "charter rights" apply to anyone and everyone who has set foot on Canadian soil, including illegals. They should be limited to citizens and lawful landed immigrants, end of story.
Posted by: Alain | 2008-03-14 11:35:20 AM
You are kidding right? The US Constitution protects US citizens. It offers no protection to foreigners. Same for Canada. The Taliban in any case has foregone a right to such treatment. So would we argue that Nazis should have been treated as having rights under our Constitutions?
Posted by: Faramir | 2008-03-15 10:14:41 AM
The title "Charter of Rights and Freedoms" is an oxymoron from the get go. I've read this convoluted, vague and ambiguous document, and its a gaurantee of absolutely nothing.(like most of our laws)
After having read it, I now understand that my inalienable rights are whatever the court or government decide they are on any given day.
Its a non sequitor and not worth the paper its written on.
Posted by: JC | 2008-03-16 8:44:20 PM
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