In Response to Bovard

I have long admired FEE, but I must take exception to James Bovard's "Torture and Liberty" (Ideas on Liberty--July 2008).

The most glaring mistake in this article is Bovard's statement that the U.S. Constitution guarantees the rights of alien combatants. The U.S. Constitution establishes a government to protect the American people from those who would harm them and places limits on that government to make sure that it will not harm the people it was designed to defend. When the Second Amendment speaks, for example, of "the right of the people to keep and bear arms," it guarantees the right of the American people to bear arms, not the right of all the people of the world. Unfortunately, the Supreme Court shares Bovard's misunderstanding of whom the Constitution is designed to protect. In Rasul v. Bush, for example, the Court extended the protection of habeas corpus to the detainees at Guantanamo Bay on the grounds that the English common law extended it to "all ... dominions under the sovereign's control." The Court fails to note, however, that the right to challenge one's detention was only enjoyed by "the King's subjects" (see the Habeas Corpus Act of 1679 and Blackstone's Commentaries).

Bovard is also wrong to assert that the detainees at Guantanamo are entitled to the protections of the Geneva Conventions. Common Article 3 protects prisoners of war and Common Article 3 protects civilians in the case of a conflict "not of an international character" (that is, a civil war). The detainees do not fit either description. Unfortunately, the Supreme Court wrongly extended the protections of Article 3 to the detainees in Hamdan v. Rumsfeld on the grounds that al-Qaeda is not a nation and the conflict between the US and al-Qaeda is, therefore, "not of an international character." Apparently this was the first time that anyone had understood the treaty in this way, because the Court could only cite Jeremy Bentham's definition of the word "international" to support its decision.

This is not to say that the U.S. government can treat the detainees in any way it pleases. As men, the detainees enjoy the rights with which all human beings are endowed by their Creator. But the U.S. is well within its rights to balance the rights of the detainees against the rights of those it was designed to protect. As for the alleged atrocities that Bovard cites, the only sources that I could find to support them were publications such as Mother Jones and the Guardian--hardly friends of liberty in the sense that FEE understands it.

In short, Bovard's article confirms what I have long suspected, that there is a great difference between libertarianism (which is essentially anti-government) and a love of liberty, which recognizes that an essential part of liberty is "to be free from restraint and violence from others." Thank God that the Bush administration understands what James Bovard does not.