Wednesday, June 22, 2005

Column on Senator Durbin's Outrage

Was Senator Durbin Over the Top?
Tibor R. Machan
Vice President Dick Cheney said of Howard Dean that something the latter
had said was "over the top" but perhaps that applies more aptly to what
Senator Richard Durbin said on June 14th. Here it is: "If I read this [the
FBI Report on prisoner treatment at Guantanamo Bay] to you and did not
tell you that it was an FBI agent describing what Americans had done to
prisoners in their control, you would most certainly believe this must
have been done by Nazis, Soviets in their gulags, or some mad regime --
Pol Pot or others -- that had no concern for human beings. Sadly, that is
not the case. This was the action of Americans in the treatment of their
What is so outlandish about this statement? Surely, how the prisoners
were treated is by no stretch of the imagination admirable, proper,
becoming of those in charge of them who work for the citizens of a free
society. Nonetheless, Senator Durbin was careless in his comparison. But
there is yet another dimension to his outrage that is worth considering.
I'll come to that shortly.
First, however, it bears noting that regimes such as the Nazis, the
Soviets, Pol Pot, and similar tyrannies routinely treat their very own
citizens in ways involving the deliberate violation of individual rights
and due process. Such regimes have officially sanctioned policies of such
treatment toward these citizens, ones who have not been convicted of any
bona fide crimes but are picked as targets of state terror.
In contrast, countries with less Draconian tyrannies have not conducted
themselves quite so badly. More significantly, when prisoners are taken,
technically their treatment is not governed by the Constitutional
provisions afforded to their own citizens. Due process does not apply to
prisoners of war, although certain international treaties, such as the
Geneva Convention, do set up policies for treatment of prisoners which are
somewhat comparable to domestic due process provisions.
The far greater but widely overlooked problem is, of course, that many of
the countries that do not practice the Draconian tyrannical measures of
the Nazis, the Soviets, or Pol Pot do have hundreds, even thousands of
completely unjust crimes on the books and those who are charged with and
convicted of such crimes do, effectively, become subject to near-Draconian
tyrannical measures, especially if they protest their conviction and
incarceration. For example, subjecting someone to imprisonment and all
that entails for consuming a substance such as marijuana or even heroin,
is grossly unjust, no matter how strictly due process measures have been
followed in reaching this result. Treating such people, who have no
violated anyone's rights, as if they had engage in assault or rape or
burglary is indeed a from of tyranny, comparable to, say, the Soviets'
conviction and jailing of profiteers.
Within a country where such laws are on the books and the jails of which
are filled with such "criminals," the habit of treating people badly is
well established and cultivated. So when prison guards are confronted with
enemy combatants, their treatment of these people is very likely to be far
more harsh than how convicts who committed victimless crimes are treated.
If a drug law offender may be treated as a vicious criminal, then
certainly a person who has very likely served to support terrorism against
the United States of America would not much seem to deserve humane
What is very disturbing about Senator Durbin's outburst is not so much
that he invokes the policies of gross tyrannies in characterizing the
treatment of prisoners at Guantanamo Bay. Sure, he was being over the top
on that score, as he later acknowledged in his apology. Of far greater
concern is the fact that he did not and still does not show any outrage
about the thousands of prisoners in American jails whose treatment is
grossly unjust, in light of laws that should never be on the books of a
free country. It is the treatment of these individuals throughout the
country, far more than the treatment of suspected enemy combatants, that
resembles that of the citizens of Nazi Germany, the Soviet Union and Pol
Pot. But it seems on that score Senator Durbin is silent, as are thousands
of other politicians throughout the United States of America. His
credibility as a man of conscience and righteous indignation would greatly
improve if he applied his high standards of justice outside the realm of
partisan political combat.

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