The Morality of Obama's Guantanamo Plan

No doubt Obama’s plan to close the Guantanamo Base prison is a step forward in fighting the threat of terrorism. Dick Cheney resents this fact for it entails that his own decisions were steps backward. But at this point who cares what Cheney says other than his reactionary cronies? After all, Cheney’s arguments do not pass a minimum test of cogency and vision. Nonetheless Obama’s plan brings to the surface a fundamental question that had been overshadowed by the numerous obscenities of the Bush administration. This is the question of preemptive incarceration.

Obama’s plan consists in transferring Guantanamo detainees to maximum-security prisons within the US borders but it does not include a discernible answer for the legal abominations these cases represent. During the presidential campaign, McCain warned Obama of the intricacies the new president was going to find once he had access to classified information on the Guantanamo detainees. And for all his gaffes, the facts seem to confirm McCain’s forecast. For what was once determination in Obama to close Guantanamo has now turned into feeble compromise. Barring an unexpected change of course, it seems that Obama’s plan is only symbolic vindication: Guantanamo detainees will be transferred to American soil but kept in the legal limbo they’ve dwelled for years.

God knows what information Obama and his legal advisors have come across in revising the Guantanamo cases. But I think it unlikely that anything short of imminent danger for the country would have persuaded Obama of the need to continue with this legal farce. So let’s suppose for the sake of the argument that Guantanamo detainees represent an imminent threat to the US. If they had not yet committed any punitive action, is it lawful and/or moral to restrain them?

Here we find the two traditional frameworks in philosophy of punishment giving opposite advice. According to the Utilitarian framework, punishment is morally justified by its beneficial consequences. Utilitarians typically mention the incapacitation of the offender as among these consequences. Thus it would appear permissible, according to this framework, to incarcerate an individual on the sole grounds that he or she represents a threat for the US.

The alternative to the Utilitarian framework is Retrubitivism. Roughly, Retributivism is the view that punishment is justified by an abstract balance representing our sense of justice. When somebody breaks the law he or she has upset that balance and punishment is required in order to restore it. It straightforwardly follows from this view that we are justified in punishing only those who have broken the law. Therefore, restraining Guantanamo detainees would be wholly immoral even if they are indeed a threat to the country and we know it, for they have yet to act on their impure intentions.

It would be presumptuous of me to attempt to adjudicate between these competing frameworks. Generations of philosophers have passed unable to do so. However, it is fair to say that even many Utilitarians, while rejecting the whole Retributive package, accept the idea that only the guilty should be punished. Guantanamo detainees cannot be guilty of anything yet as they have been denied the nowadays luxury of a due process. And having bad intentions is not recognized as a crime by any legal code. As a consequence, it seems really hard to reconcile Obama’s Guantanamo plan with any accepted morality of punishment.

Politicians are not only beholden to such abstractions as justice but also to their country. It seems therefore unlikely that Obama (or anybody for that matter) is going to clean this mess. No doubt politicians in positions of power have a responsibility to protect their country. But more importantly, the American electorate is extremely sensitive to the issue. Republicans have traditionally exploited the issue of national security to a point of absurdity. And Cheney as well as the Republican minority in Congress have made it clear that they will continue to pound it. This leaves the Obama administration with no margin to correct the abominations created by Republicans themselves.

As Nancy Pelosi has lately insisted, there is an important distinction to be drawn between those who caused this state of affairs and those who have failed to straighten it. There can be no doubt that Republicans fall in the former category and thus carry most of the responsibility for jeopardizing the Constitution of the US. However, they also carry some of the responsibility for politicizing the problem now in the hands of the new administration blocking any conceivable solution for it. As Eugene Robinson suggests, in history books hundreds of years from now Republicans will have to be charged with the decline of the US.