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The Moral Case

Much of the debate over the fate of the Guantánamo detainees has involved legal arguments that turn on habeas corpus or international treaties. But there are also ethical arguments bearing on the war on terror.

This intersection of ethics and legality is where Huzaifa Parhat and the other Uighurs who have been imprisoned at Guantánamo for the last seven years now find themselves. A Washington, D.C., community of Uighurs has offered to take them in. But the government continues to block their release, arguing that the judicial branch does not have the authority to let them enter the United States. 

“This is a very poor argument,” says legal philosopher Ronald Dworkin ’53, LL.B. ’57. He argues that Americans must do the right thing: “The courts must make plain our obligation to take people into America when, as in this case, we are responsible for their detention and they have no other genuine option.” Comparing the U.S. response to terrorism with that of the United Kingdom and Israel, Dworkin suggests that in each case, it has ultimately been the courts that have been the best guardians of fundamental rights. “The U.K. was guilty of violations of human rights in its treatment of IRA prisoners, though the sensory deprivation and other tactics it used were not as bad as the undeniable torture the Bush administration deployed in interrogating terrorist suspects,” he says. “Since 9/11, Britain has also attempted to hold terrorist suspects for lengthy terms without trial or charge. Israel, too, has violated basic rights in its fight against militant Palestinian groups—destroying houses of relatives of suspected Arab terrorists, for example. In both cases, the judiciary—the British House of Lords and the Israeli Supreme Court—made brave decisions rejecting these methods, decisions that came to be accepted as right in time. Here, too, the Supreme Court has been, so far, a better guardian of our honor than the other branches. I don’t think we should accept that we are weaker in our protection of basic rights than other nations. But it is part of our tradition that we are better—that we lead the way in taking rights seriously—so our failures are exercises in hypocrisy as well.”

“The law is not exhaustive in its determination of what is right and wrong,” assistant professor of law Gabriella Blum, LL.M. ’01, S.J.D. ’03, said at a recent Harvard Law School symposium on terrorism and civil liberties. “There are going to be cases where we all believe it is necessary to break the law,” times when “this is what we would want the president to do.” Lincoln’s suspension of habeas corpus to preserve the Union was arguably such a moment. “And there are going to be cases when the law will allow us to do certain things that we will think about as immoral, irresponsible, and counterproductive.” 

Pulitzer Prize-winning journalist Anthony Lewis ’48, NF ’57, is deeply disturbed by the government’s use of torture during interrogation—and by the lack of public outrage. Lewis cites cases: a 17-year-old Afghan subjected to the “frequent flyer” program of being moved every two hours to prevent sleep (the teen confessed to attacking U.S. forces only after the Afghan police threatened to kill his family if he did not); José Padilla, an American whom the government “held in solitary confinement and deprived of all sensory input until he went crazy”; and Moher Arar, a Canadian citizen who was on his way home from a family vacation in Tunis when the U.S. government detained him during a layover at John F. Kennedy Airport. “Acting on the basis of suspicion,” says Lewis, “the government sent him to Syria to be tortured.” After nearly a year of abuse, he was allowed to return home to Canada, where a government commission cleared him of ties to terrorism and gave him a $10-million settlement. Arar is now suing the U.S. government over this rendition for the purpose of torture.

Two international treaties by which the United States has traditionally abided ban such prisoner mistreatment, as does the Uniform Code of Military Justice, which makes torture a crime. But what is morally right and legally defensible are not necessarily the same thing. Treaty obligations can be ducked, and military laws may be scuttled on direct orders from the president-as-commander-in-chief. “This undermines the rule of law,” Lewis says, “and it demeans us as Americans.”