National Defense Authorization Act: defending or violating Americans?

December 6, 2011

Military, Political action


While someone else has already addressed the Senate’s 2012 National Defense Authorization Act in relation to the Dirty Hands problem, I had some alternative considerations for this Act.  To reintroduce the issue, the Senate has recently passed this bill which allows the military to hold in custody “someone the government says is ‘a member of, or part of, al-Qaida or an associated force’…without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.’”  Essentially, the Senate has given the military the ability to detain any suspicious potentially terrorist persons until the end of our ambiguous war situation.

Carl Levin argues for the National Defense Authorization Act

I do not find this to be a scenario that can be framed as a Dirty Hands problem because it seems that the Senate thought they were doing the right thing in passing the bill, rather than doing the wrong thing but with the greater good in mind.  Senator Carl Levin of Michigan, one of the bill’s main architects, testified on the floor that the National Defense Authorization Bill “will improve the quality of life of our men and women in uniform” but does not preclude a military detainee from being tried in “civilian courts at any time.”  It can be inferred that Levin believes this is a morally correct bill, and therefore I would argue that the Dirty Hands issue is not relevant here, but rather the question of individual rights and social contracts should be brought to attention.

Many are decrying the National Defense Authorization Act because detaining citizens would appear to contradict the Sixth Amendment’s guarantee of a right to trail for all Americans.  Critics cite that therefore, this Act violates the individual rights of citizens of the United States.  Prior bills involving suspicious persons had cited foreigners as possible detainees, but it has been a shock to all that U.S. citizens are included within the reach of this bill.  We are raised as Americans to believe that all individuals should have the right to justice, and most believe this means having the opportunity to obtain a lawyer and have a fair trial.  From a personal standpoint, it seems absurd that an American citizen would be denied the right stipulated by the Sixth Amendment.

Does the Sixth Amendment to the Constitution mean that this Act is unjust?

Yet, if we are living in a society governed by a social contract as seen by Jean-Jacques Rousseau, then perhaps none of the aforementioned individual rights are really valid.  Rousseau argued that we alienate our rights for the benefit of the collective, and everyone should be working together in order to “win.”  We, therefore, should be willing to make a certain amount of sacrifices in order for the “team” to do well, or for our government and state to succeed.  If we are succumbing to the group mentality and the state, wouldn’t Rousseau’s social contract stipulate it acceptable that we are not privy to certain rights?  In accordance with Rousseau, would the National Defense Authorization Act be acceptable because it is protecting the collective, the nation, from terrorism?

It would seem that if we framed this bill through the eyes of Thomas Hobbes and his social contract, he might render the same conclusion as Rousseau: that the bill was acceptable.  Hobbes believed that a person in power should remind people of contracts, and therefore the government needs to use fear of death in order to get people to remember and honor their covenants.  In their fear of death, people give up their individual rights to the sovereign.  In application to the Defense Act, it would seem that people do not have the right to challenge the bill and the government because they have already given up their rights.  It would also seem that the government needs to uphold bills like the Defense Act because they further perpetuate citizens’ fear of death (if a terrorist were to be found guilty of treason), and therefore aid society.

Is it appropriate to give up our individual rights in protection of the whole against terrorism?  Do Rousseau or Hobbes’ social contracts make it acceptable for the government to have a bill which denies citizens a right stipulated by the Sixth Amendment?

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About elyssashea

University of Michigan student

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