Even if the policy can meet the three limitations of immediacy, necessity, and proportionality, the policy of indefinite imprisonment at Guant´anamo Bay should not be considered a legally justified act of state self-defense. Like the epistemic obligations applicable to a person who is the victim of a sufficient threat and responds to that threat with force, the United States should also have to meet similar epistemic obligations prior to using force in defense. The force – that is, the policy of indefinitely imprisoning the detainees – committed by the United States at Guant´anamo Bay should not be thought justified as an act of self-defense until and unless the United States utilizes all reasonable and available measures to ensure that each target of the policy is a proper target, meaning that each detainee poses a sufficient threat. Add this limitation to the three stated above and call it the “due diligence limitation.”
According to the due diligence limitation, states that use force in defense must implement the best reasonable and available measures to ensure that persons who are not threats (hereinafter referred to as “innocent”) are not the direct targets of that state’s defensive actions and policies. More specifically, the due diligence limitation consists of the following three requirements: First, acts of state self-defense are acts that are aimed at proper targets, meaning that they are aimed at a target that poses a threat. Second, they are acts that are taken only after the state has utilized all reasonable and available resources to determine whether the potential target is an actual threat, what kind of threat it poses, and what actions would reasonably stop that threat from becoming
16Would the detention of some innocent people be the detention of too many? In all legal and
“just” wars (if there are any), the unfortunate killing, not the detention, of innocent people is tolerated and not thought, by itself, to outweigh the aims or good being supported by war. I take up this issue in Section III.
On State Self-Defense and Guant ´anamo Bay 163 an attack. Third, all defensive acts or policies must fit with the degree of knowledge that the state has about each target.
The due diligence limitation is not currently recognized in international law as a legal limitation that needs to be met before an action can be considered an act of state self-defense, but it should be. Without it, acts and policies that target innocents (e.g., acts of terrorism and acts that allow for the indiscrimi- nate killing of persons) could be considered justified acts of state self-defense because such acts by a state could meet the other three legal limitations.
The first requirement of the due diligence limitation prohibits the targeting of innocents, including innocent bystanders.17 For example, a right of self- defense is not usually thought to justify threatening or taking hostage the serial killer’s mother to stop the serial killer.18 If the mother is innocent, she has a right of self-defense against any aggressor, even if apprehending and threatening her would in fact stop her son from committing future murders and even if it would appear to be the only way to stop those future murders. Even if killing her meets the limitations of immediacy, necessity, and proportionality, attacking the serial killer’s mother would not be thought justifiable as an act of self-defense.
Similarly, in the international arena, when state A is threatened by state B, state A should not under a right of state self-defense be able to use military force against state C to stop the threat if state C is innocent, regardless of whether it is reasonably foreseeable that such force would help alleviate the threat from state B and even if the threat to state A was one of great enormity (e.g., state A’s existence was threatened).19In such a case, state C would have a right of self-defense against state A.
Regarding self-defense, most scholars agree that innocent persons or non- threats cannot be justifiably targeted on grounds of self-defense because such
17Regarding self-defense and the killing of innocent bystanders, see Jeff McMahan,The Ethics of Killing(Oxford: Oxford University Press,2002),402,405–10; Judith Jarvis Thomson, “Self- Defense,”20(4)Philosophy&Public Affairs(1991),283–311; and David Rodin,War&Self- Defense,81–3.
18Thomas Nagel, “War and Massacre,” in Charles R. Beitz, Marshall Cohen, Thomas Scanlon, and A. John Simmons (eds.),International Ethics(Princeton: Princeton University Press,1985), 68; and Robert Fullinwider, “War and Innocence,” inInternational Ethics,92–3, also use the term “innocent” to mean “nonthreat.” They also make similar arguments and use similar examples regarding the use of force against innocent third parties to stop a threat. Fullinwider specifically states that self-defense does not justify the use of force on a nonthreat or innocent person.
19An example of this can be seen in Russia’s war against Finland in1939–1940. The Russians wanted to control Finnish territory, keeping it from Nazi Germany, because it was within artillery range of Leningrad. When negotiations to obtain the land from Finland failed, Russia took it by force.
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persons are not causally responsible or morally culpable, have not lost their right not to be killed, and have not forfeited their right to self-defense.20Rather than justified according to a right of self-defense, those who target innocent persons or who indiscriminately kill others in an attempt to save their own life or improve their own situation are more like aggressors than defenders.21 Those who target innocent persons use others as a means to an end. Those who indiscriminately kill people in hopes to improve their position or save their own life often recklessly use persons as means. They do not seriously concern themselves with the individuals being harmed but with what it is that allegedly needs to be done. Whether using people in this way is ever per- missible we need not decide here, but what is, and should be, widely agreed upon is that people who target innocent persons or who indiscriminately harm others cannot properly rely on the justification of self-defense when they do so.
The case of a person targeting an innocent person to save lives can be con- sidered similar to the notorious case of grabbing an innocent person walking by the hospital to harvest her organs to save five patients in the hospital who would die without those organs. This kind of act is not an act of self-defense; it is not thought justified for reasons related to self-defense. Although targeting innocent persons to save one’s own life or even to save the lives of others (e.g., a friend in the hospital) may have a defensive quality to it, this defensive quality is deceptive or a false lead if it prompts people to invoke self-defense as a justification. Targeting innocent persons is not the kind of act that has been thought to fall properly within past and current conceptions of a right
20David Rodin argues that an aggressor must be “morally at fault” to have lost her right not to be killed. See his “Symposium: War and Self-Defense,”18(1)Ethics&International Affairs (2004),64. Jeff McMahan agrees with Rodin that there must be something unjust or morally liable about the aggressor. See his “War as Self-Defense (Response to David Rodin),”18(1) Ethics&International Affairs(2004). Paul Woodruff thinks that self-defense justifies using force against those who are “causally responsible.” See his “Justification or Excuse: Saving Soldiers at the Expense of Civilians,” Supplementary Volume VIIICanadian Journal of Philosophy (1982),166–9. In “Self-Defense,”20(4)Philosophy&Public Affairs(1991),283–310, Judith Jarvis Thomson argues that innocent aggressors and innocent threats “lack rights that you not kill them” because they violate “your rights that they not kill you.” If none of these reasons are present, then the person is perceived as an “innocent bystander,” and shifting harm to, or targeting, an innocent bystander is not justified according to a right of self-defense. Rather, it is thought to be terrorism. See McMahon, “Self-Defense and the Problem of the Innocent Attacker,”104Ethics(1994),255.
21Using a hypothetical example situated in Vietnam, Paul Woodruff has a good discussion regard- ing the distinction between shooting indiscriminately into the bushes in hopes of preserving one’s life, which might sometimes be morally excused, and acting justifiably in self-defense.
See Woodruff, “Justification or Excuse: Saving Soldiers at the Expense of Civilians.” Here, I agree with Woodruff’s analysis.
On State Self-Defense and Guant ´anamo Bay 165 of self-defense. The right of self-defense has been, and is currently, conceived of as a right that can be invoked only by a victim against an aggressor (or by someone or some entity that comes to the aid of the victim by taking actions against the aggressor). Clearly, the justification of self-defense has not yet been broadened to encompass and justify all actions that might be taken to improve one’s position, and it clearly is not thought broad enough to justify all actions that are taken to preserve one’s own life.
The second requirement of the due diligence limitation places epistemic burdens on the state using force in defense. Imagine a case in which a military unit captures and incarcerates all the patrons in a restaurant based on a tip from an informant that a couple of the patrons are hard-core terrorists. Prior to apprehending all of the patrons, the unit had the time, knowledge, and resources to check this information with more reliable informants, and the unit could have had these more reliable informants specifically point out each alleged terrorist. When this is the case and the unit knows it, the unit has a duty to utilize these other procedures or resources. Similarly, an individual is not engaged in a justified act of self-defense if he walks into a bar with a machine gun and shoots all the patrons because he knows that two people in the bar are planning to kill him, especially if he also knows that he has the time and resources to ascertain which patrons in the bar actually are his would-be attackers.
The third requirement restricts the force used in accordance with the degree of knowledge that the person or state has about the target. This requirement acknowledges that there are often different degrees of knowledge or differ- ent thresholds (e.g., “reasonable suspicion,” “more probable than not,” and
“beyond a reasonable doubt”), that, depending on the circumstances (the kind of threat posed, the urgency of the threat, and the ability to respond to the threat) justify a different degree of force. This kind of analysis and result is similar to the one that a judge might make prior to setting a monetary amount for bail or allowing any bailment at all. Also, as those evidentiary burdens just articulated indicate, this requirement follows the reasoning found in many domestic criminal laws. A police officer might first have reasonable suspicion to stop a swerving vehicle. After the stop, the officer, depending on what he or she sees or smells in the car, may have probable cause to detain the person for a short period of time and to search the car. Then, after the search, if there is strong evidence (i.e., beyond a reasonable doubt) that the driver has violated a law, a prosecuting attorney on behalf of the government could seek to impose a fine or imprisonment. Many domestic legal systems then already acknowl- edge this notion that different levels of force are thought justified based on the different levels of knowledge ascertained.
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Because any force used in defense should correspond with the degree of knowledge that one has, incremental changes in the use of force are not only justified but should be obligatory. Less force should be used when the degree of knowledge regarding a sufficient threat is less certain. This is true because a right of self-defense does not simply consider victims of threats, but it also takes into account the potential targets of the alleged defensive act, especially when the force being used in defense will be lethal or result in substantial harm. Between states, for example, depending on the threat posed, a certain degree of knowledge concerning a specific threat might at one time only justify sanctions, whereas later, a greater degree of knowledge regarding the same threat may justify a military response.
The due diligence limitation places a duty on states to target only threats, investigate as thoroughly as possible all alleged threats, and tailor any use of force to the knowledge that the state has about the threat. This responsibil- ity and these epistemic burdens and obligations are required to ensure that innocent people, again meaning nonthreats, are not targeted. A right of state self-defense should not exonerate a state from failing to use all available means to ensure that innocent people are not the subjects of force (e.g., imprison- ment). If a state does not adhere to the requirements of the due diligence limitation, as with persons in domestic legal systems such as the United States, it is likely that that state’s actions can be considered reckless or malicious and that that state should be considered culpable and likely liable as well.
The current policy of indefinite imprisonment fails to be justified according to a right of state self-defense because it cannot meet the requirements of the due diligence limitation. To meet the due diligence limitation, the policy would have to contain more “truth-conducing” procedures that would aid in discovering whether a detainee actually would pose a threat upon release.
These truth-conducing procedures are minimal and are synonymous with some, but not all, of the due process rights granted criminal defendants in many domestic legal systems.22These procedures, which are currently absent, should
22If one includes the possibility of being prosecuted for a war crime by a military commission, which is not necessitated by the policies associated with indefinite imprisonment, there are currently three possible levels of review for a detainee. Here, I am discussing the procedural inadequacies, which are also fact-finding inadequacies, of the first two mandatory levels of review called the Combatant Status Review Tribunal (CSRT) and the Administrative Review Board (ARB) that result in the indefinite imprisonment of a detainee. The procedures for the first two levels of review can be found on the U.S. Department of Defense Web site at http://www.defenselink.mil/news/Combatant_Tribunals.html (last accessed June18,2008).
These first two levels make forward-looking judgments concerning whether the detainee will pose a threat to the United States in the future. A detainee first goes before the CSRT, and the detainee’s status is supposed to be reviewed by an ARB annually. The third possible review
On State Self-Defense and Guant ´anamo Bay 167 be required because they are reasonably available. The United States has the resources to implement them for the approximately270detainees remaining at Guant´anamo Bay and could have implemented them for all detainees that have been incarcerated there. Also, importantly, these procedures often enough significantly impact whether the truth will be ascertained and, in doing so, often enough affect whether the force being used really is a defensive use of force in the sense that it can properly be said that it is a use of force that falls within the justification of self-defense. Below, I briefly state six such minimal procedures that would need to be implemented for the U.S. policy of indefinite imprisonment to account fully and responsibly for the persons who are being, and will continue to be, detained at Guant´anamo Bay.
First, a time limit for a hearing for each detainee should be set, as well as a time limit for the discovery of all evidence. Also, the detainees should have a right to be present at that hearing. Although allegedly all detainees have now had an initial administrative hearing called a CSRT, some detainees were imprisoned for years without any such hearing. Others had this hearing but were not allowed to be present at it. In addition, time limits for such hearings have now been set, but in the past they have not been adhered to, and there were not any (and currently are no) adverse ramifications for the U.S. government for not adhering to those time limits. Having time limits backed by penalties for failing to adhere to those time limits helps to ensure that the evidence is not tampered with, lost, or forgotten and that any innocent people are not detained longer than necessary.
Second, there should be a presumption of innocence at all such hearings.
Currently, the CSRT starts with the presumption that the detainee is an enemy combatant and thus the detainee is a threat who should be detained indefi- nitely. This current presumption is just one of many procedures that appear
is that of a military commission, which prosecutes detainees for crimes. Importantly, again, note that currently the United States claims that it can imprison foreign citizens indefinitely after the first two reviews; the United States need not ever prosecute a detainee for a crime to hold the detainee for years, decades, and possibly for life. Many have already been held for six years. The procedures required by a right of self-defense for people in custody are different than those demanded by a criminal trial for at least two reasons. First, any determination to continue to hold a detainee for reasons of self-defense is mostly a forward-looking judgment;
it must be a judgment regarding whether the detainee will pose a threat in the future. Thus, it is not in any way supposed to be a retributive judgment. Second, criminal trials seek evidence beyond a reasonable doubt, whereas the forward-looking judgment required of self-defense likely necessitates something less (e.g., “more probable than not” or “sufficient evidence”
that the person would pose a sufficient threat upon release). Currently, the CSRT uses a preponderance of the evidence. The ARB makes recommendations to release the detainee (with or without conditions) or to continue detention on what they reasonably believe about the detainee.
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to stack the deck against the detainee from merely being able to reveal his side of the story or his perspective on all of the facts that led to his apprehension.
This presumption impedes the detainee from being able to examine closely all of the evidence and resources being used to continue his incarceration.
It might be thought that this suggested change (i.e., the shifting of this pre- sumption and burden to the United States) is more concerned with being cau- tious than with ascertaining the truth to ensure that the process errs in favor of those who may be incarcerated. Yet, this procedural change would have truth- conducing affects. This procedural change would make the United States, which has substantially more resources (people, money, information, and tech- nology) than the detainee, do more and reveal more. If this change were incor- porated, the United States would have to utilize and expose these resources and information for closer scrutiny. This closer scrutiny would likely occur by the United States before revealing the information and by the detainee or his repre- sentative after it is presented. Of course, although the utilization of these addi- tional resources and the exposing of more information is not always beneficial to arriving at the truth, when there is a great disparity in the resources between two contentious parties involved in a heated and important dispute (where los- ing for either side can sometimes be seen as far worse than lying or hiding facts), there is, often enough, a great potential for the side with the most resources to prevail, regardless of whether it presents, or adheres to, the truth. Shifting this presumption then is a procedural change that would to some degree lessen the disparity between the parties and compel the party with the most resources (i.e., the United States) to use and expose them to closer scrutiny.
Third, at all hearings regarding detention, an attorney should represent each detainee, and any presiding authority should be a judge or a panel of judges.23 When a substantial restriction of liberty (i.e., indefinite imprisonment) is on the line and truth is the goal of the investigation, experts who are trained in reviewing and presenting the evidence are required on both sides. One is not likely going to ascertain the truth when, as is often currently the case, the representative for the government is an attorney and the representative for the detainee cannot be an attorney and thus does not have any substantial legal training in the analysis and presentation of evidence.
23The judges should be attorneys and have sufficient judicial experience. Currently, one of the panel members for the CSRT is to be a judge advocate (i.e., a military attorney). None of the panel members of the annual ARB can be a judge advocate, and none of the personal representatives for the detainee at the CSRT or the assisting military officer at the ARB (the person representing the detainee) can be a judge advocate. Specifically, the personal representative (who is not an attorney) for the detainee at the ARB is also not to be an advocate for the detainee.