A Counter To Complaints Against Indefinite Detention

My libertarian friends seem to be making a lot of noise about recent policy that allows the USA to conduct “indefinite detention” in its fight against terroris. And, despite my desire to circle the wagons whenever possible, I don’t have any problem with “Indefinite Detention”. Although, I’ll qualify that later on.

We have a long history in the west, of detaining prisoners of war for the duration of the war, and exempting them from punishment, and negotiating the terms of their exchange at the end of the war, in exchange for our prisoners, and other concessions. One of those concessions is that we hold the group we negotiate with accountable for the actions of the released prisoners.

Our tradition of holding prisoners, and the laws that surround it, is ancient. It had multiple purposes. It reduced the likelihood of violence against a soldier, which made men on both sides more willing to join the military and fight. It allowed for ransoms to be collected. And it allowed for more peaceable negotiations since the slaughter of prisoners tends to incite the opposition interminably.

So, I have no problem with indefinite detention. That is,assuming that Congress has declared war on a group, a state, or a concept.

In our secular legal system, we make the false assumption that an antagonist against whom we can declare war must be a state. But that’s not true. We conducted the crusades, not only because of the actions of the islamic states, not only because of their bloody violence against european property, but because of the INACTION of the islamic states in securing the safety of pilgrims to the holy land. (The bulgarians in particular.) So, one of the virtues of a state, is that a state can be held responsible for the actions of its citizens against those of foreign states. Otherwise a state is just an excuse for giving a haven to terrorists, thieves, pirates, brigands, drug dealers and all other despicable people.

But it’s not just the abstraction of a state we can old accountable. A state is just an idea, a territory, and a group of people. We can also hold a group, or idea accountable. We certainly held Communism accountable. And if we had been as vigorous as say, (general ww2) wanted us to, we might have saved 70 million chinese, and 20 million Russians from fratricide from starvation and murder at the hands of their own governments due to an absolutely insane economic ideology.

We can certainly hold groups accountable for their actions, regardless of their state or lack of one. We can certainly hold peoples accountable for their religious and cultural associates.

All that need justify “indefinite detention” is an act of congress that labels a group, a state, a people, or an idea or movement, the subject of a declaration of war.

If then people feel a terrible objection they can certainly move their congress, their senate and their president away from war against their own people. It is not citizenship in the abstract that protects an individual from acts of war by his own country. It is his subscription to it’s laws, and covenants, which are demonstrated by his words and actions. War is not a matter for law. Law is for the purpose of resolving conflicts within a state. War is for resolving conflicts outside of law. And if a country declares a group, an idea, a people, or a state the target of war, then individuals who conspire and associate with a group, promote an idea, belong to a people, or are citizens of a state, are no longer criminals, but combatants in a war, or traitors.

I don’t have any problem with “indefinite detention” of anyone against whom we declare war. I don’t understand why I should fear my government outlawing me for my ideas, associations, or actions. And, given the political power of my fellow Americans, I am not terribly concerned with outlawing the ideas, association or actions of others.

And, taken to the extreme, should my government declare war against me for some reason, then I am no longer prohibited from using my inventory of violence against that state. Because it is my violence that I give to the state to use on my behalf when I become a citizen. A state is nothing but claim to a territorial monopoly on violence. And should my state reject me, or outlaw me, then I no longer must restrain my violence. And I may use it to any moral end that I choose. Be it to overthrow that state, form another, or give my violence to some other state, some other group, in support of some other idea, so that either I, or others may use it on my behalf.

Indefinite detention is a meaningless objection by libertarians who are convicted pacifists rather than practical observers of human nature. However, any indefinite detention must be limited to those imprisoned under articles of war. They certainly have a right to military tribunal, but the only argument that must matter to the tribunal is whether they are part of the group, a member of a people, a state, an ideology against which we have made a declaration of war.

In our own legal system, the judiciary has determined that legal recourse post-hoc is a sufficient guarantee of liberty for the individual. While I disagree with their position because of the value of time and opportunity, and because it lets the judiciary act too slowly and irresponsibly, any argument that the due process of law is superior to the process of tribunals is at best a false equivalency, and at best an open deceit.

Indefinite detention is entirely acceptable as long as there is a declaration of war. In fact, it’s preferred.

2 responses to “A Counter To Complaints Against Indefinite Detention”

  1. So, you’re a legal positivist.

    In any case, I think you mistake “ethics” for a “description of social contract.” You think that because you can describe social contract, that social contract is ethical. Is “indefinite detention” for an “indefinite war” on an ill defined concept ethical? Well…. since you went through the trouble of describing it… yes?

    And what’s with the paragraph saying that it is a myth that we can only declare war on a state? You back it up with the statement:

    “So, one of the virtues of a state, is that a state can be held responsible for the actions of its citizens against those of foreign states.”

    Oh! Because I thought you were trying to supplement your point and not go off on a tangent that has nothing to do with your thesis.

    Then you go on to say:

    “If then people feel a terrible objection they can certainly move their congress, their senate and their president away from war against their own people.”

    What do you think your libertarian friends are trying to do? Why do you think they express their opinion in a convincing way? Of course, once someone is elected voters can’t move shit AND there are all kind of disincentives for individuals to be informed voters (the statistical effect of their vote -very small- vs. the cost of knowledge). So there is public opinion.

    But my question is… how do you argue against a description of how things are (i’m giving you unearned credit here for your accuracy in describing our system). If a simple description is necessary to justify indefinite detention, combined with some of the benefits for the state (not the people of course), how can I argue with that?

    • Hello George, thanks for your comment. Let’s see if I can make out your argument.

      RE: “So, you’re a legal positivist.”
      No, I just start from a different propertarian position than does Rothbard. I start with the problem of creating the institution of property, both as a norm and as the foundation for law. In that foundation, one group of people have one set of property rights (even if that means ‘none’), and another group of people have another set of property rights (even if that means ‘none’). And that for a variety of reasons (some irrational) it is impossible to reconcile those differences because of the impact on the structure of formal and informal institutions, severa and real property, contracts and promises, that represent the capital of the group. They work as a group to protect or advance their corporation against that of the other group. They resort to violence. I work forward from that problem and end with the practical reality that the world over, groups form warriors, soldiers (armies), brigands and thieves. People form organizations and corporations. Capturing members of the opposing group weakens them. Killing them opens our people to being killed, and keeping them for the duration of the conflict keeps them from harming our people, and from helping theirs. It’s terribly practical. That’s why we’ve done it for millennia. There is nothing ‘legal’ about it. There is nothing ‘ethical’ about it. It’s simply descriptive.

      RE:”Ethics as a social contract”
      Well, I don’t know where you’re coming from, but I take ‘ethics’, like anyone else who has studied philosophy, to mean the study of good and bad behavior given the formal and informal norms that constitute the body of rules by which a population cooperates. In perfect terms, or IDEAL terms, we seem to have finally figured out that ethical behavior would simply require observation of life, liberty, and property, an obligation for truth telling, and a prohibition against violence, theft, destruction and fraud.

      However, since groups form formal and informal corporations (organizations) each with it’s own shareholder agreement – written or not, and lastly, because the interaction between all of these rules, rights and obligations is complicated, and because there are always rent seekers, the corrupt, and people at the margins, then there are both impossible circumstances, unknown circumstances, and known circumstances where people must fall back on an abstract set of rules in order to determine what ‘ethical’ action means in any circumstance. THerefore I consider ‘ethical’ to mean ‘a judgement according to the formal and informal contracts’. I suspect you would say that ‘ethical’ is an absolutist proposition, and I would possibly agree with you. But since ethical statements require action, and action must happen in the real world, then I must constrain myself to the fact that the real world exists, and that all societies have some sort of property rights, and that those systems differ, and some are beter than others, and some, unfortunately, are effectively prophylactics against development of a division of labor. So, in that sense, I would distinguish between an actor in that society acting ethically according to his norms, and the optimum ethics regardless of those norms.

      Since we operate with limited information, perfect calculation is impossible. We will always have disputes.

      So I do not think I am confusing the two. I’m looking at a spectrum and talking about different points on it.

      Now, you might try a typical criticism here, and that would be that you believe property rights are limited to several property, and that norms are arbitrary. And I would argue that you’re trying to obtain the benefits of the local market at a discount – which is an involuntary transfer and a violation of the property rights of others – it’s just fraud.

      “Myth … War on a state”
      In technical terms a state is an abstract entity – a form of corporation which CLAIMS a territorial monopoly on violence within their jurisdiction. That’s a narrow definition. It is certainly possible to conduct war against non state actors. We conducted war on the american indians – a race. We conducted a war against communism – an idea. We’re certainly conducting a war against drugs – an industry, and against radical islam – an idea. And for example, the world’s leading military historian (Keegan) has written a tome for the purpose of reminding our leaders that our concept of war is particularly western, and we constantly fail to understand that the western method was a preference for resolving conflicts quickly and decisively – but it is a cultural custom of the west, not a universal human rule that we can adhere to when in conflict with others.

      “Nothing to do with the thesis”
      Well, since the question here is merely whether we can indefinitely detain people. And since the purpose of indefinite detention is to keep the enemy’s forces off the field without resorting to killing them. And because soldiers cannot be tried because they act involuntarily at the behest of their organization, (it would be irrational), then the only thing needed to transform a crime, that must be tried, into an act of war, which should not be, is a declaration of war.

      And the point I made, was that when we transition from LAW to WAR, we move OUT of the domain of normative ethics (ideal or not), and into the domain of practicality.

      “what do you think”
      I think my libertarian friends are advancing an ideal. …. However, war is simply the resolution of conflict over property rights of all kinds – that’s why wars are all economic in nature. There is nothing different about one (state) corporation resolving a conflict with another, than there is one individual resolving a conflict with another. Propertarianism is the act of reducing all human rights to rights of property, and working back. And some property ‘maps’ are incommensurable and incalculable – so conflict must occur. Idealistic individualist propertarianism (Rothbardianism) is a reductio model given objective reality. Especially given that we DO have to hold land against other people who would willingly institute different property rights over ours, ideal or not. If you want to make up a religion I’m all for it. But I’m just sticking with reason for now. 🙂

      Now, as to your final paragraph, there are far too many pronouns and not enough nouns for me to understand what you’re asking. 🙂

      But I don’t know how you can argue with it anyway. It’s a pretty tight argument. 🙂

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