Brian Kogelmann graduated from the University of Illinois at Chicago with a B.A. in philosophy and a B.A. in political science. He is currently pursuing his Ph.D. in philosophy at the University of Arizona where he is a Charles G. Koch fellow at the Center for the Philosophy of Freedom as well as a Humane Studies Fellow with the Institute for Humane Studies. His research interests include non‐​ideal political theory and public reason liberalism.

The controversy surrounding the Guantanamo Bay detention facility is one that ebbs and flows throughout our national discourse. Going unmentioned for months at a time, some timely issue pertaining to torture or due process or our current war on terror will bring Guantanamo back into the national spotlight for but a few fleeting moments, only to be forgotten again in exchange for more timely issues. Currently, we are a time of more flow than ebb. The recent rash of hunger strikes occurring at Guantanamo–in which as many as 45 detainees are refusing to eat, thirteen of which are being force-fed–has brought the secretive detention facility back into national headlines, if only for a few moments. Given the timeliness, I would like to take the opportunity to explore Guantanamo Bay in a more philosophical manner than is usually done. Most libertarians, I believe, think Guantanamo Bay is somehow morally bad. But even though many libertarians might harbor this disposition (present company included), we might remain unable to articulate why it is we feel this way. In this essay I try to state clearly why I think the Guantanamo Bay detention facility is morally bad.

Here is one reason to believe that Guantanamo is morally bad: it is morally bad because it stands in defiance of both national and international law. Internationally, detention practices at Guantanamo remain in violation of several statutes of the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and enforced from March 23, 1976 forward. While there are many statutes composing the ICCPR, it remains a relatively uncontroversial fact that detention practices at Guantanamo stand in defiance of several requirements of the multilateral treaty, namely articles seven, nine, and fourteen. Moreover, it could also be argued that detention practices at Guantanamo stand in defiance of national law as well, particularly the guarantee of due process secured through the Fifth and Fourteenth Amendments, though this is a much more controversial claim.

But even though the Guantanamo Bay detention center is in defiance of the law, it is not morally bad because so. This is because actions and institutions cannot be morally wrong solely because they are in defiance of the law; such a view would commit us to absurd conclusions. For example, suppose there was a law requiring every parent to kill off their children until they were left with only two offspring. If a parent with six kids refused to kill four of them off–in defiance of our hypothetical law–have they done a morally bad thing? Hardly. We don’t even need to delve into the realm of counterfactuals to prove this point: were the actions of Harriet Tubman and other abolitionists, who sought to free slaves by providing passage to the north in violation of the Fugitive Slave Act, morally wrong? Again, obviously not. As such, we cannot commit ourselves to the position that actions and institutions are morally wrong because they are in defiance of the law. By implication Guantanamo is not morally bad because of its questionable legal status.

It might be true that Guantanamo is morally bad because torture happens within the facility. After an inspection the International Committee of the Red Cross (ICRC) concluded that the institutional infrastructure present within Guantanamo “cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.” Reported practices included humiliating acts, solitary confinement, temperature extremes, and forced positions. Although the U.S. government has denied allegations of torture, released prisoners have corroborated the ICRC report, claiming that beatings, sleep deprivation, prolonged hoodings, along with other torturous practices occurred. It is due to the presence of these inhumane practices within the facility, it might be argued, that gives Guantanamo its suspect moral status.

We cannot say that Guantanamo is bad because of the alleged torture taking place there, even though we might have problems with specific instances of torture occurring. Here is why: most people believe that torture, in some cases, is morally justified. Consider the banal ticking time bomb example: we know that a nuclear bomb is going explode in New York City in one hour, and we also know, without doubt, who planted the bomb. We also do not know where the bomb is located. Would we be justified in torturing our bomber to learn the location of the bomb? Most would say yes. As a result, torture is not always morally wrong (though oftentimes it is). Now consider the relation between this corollary and Guantanamo: suppose it was true we knew for a fact that every instance of torture happening in Guantanamo was of the type that we could confidently predicate as morally just. But even so, torture is still happening in the facility.

Under such circumstances–where only justified torture takes place in Guantanamo–is there still something morally problematic with the detention camp? I think so. If the above counterfactual is too difficult for the reader to imagine, or if the reader believes that torture (as many libertarians do) is never justified, then consider this: imagine that, in some possible world, every fact about Guantanamo remained the same, except no torture whatsoever took place there. There was still the detention camp; still filled with both civilians and those picked up off of the battlefield; and they were still denied basic due process of law, being kept in the facility for years upon years with no chance of defending their innocence in front of a legitimate, unbiased court. Under such conditions, is Guantanamo now morally good, or at the very least not morally bad? Doubtfully. Something still seems off to most of us–suggesting that torture is not the rasion d’être of the moral badness.

It might be true that Guantanamo is morally bad because it refuses to give its detainees the full extent of due process given to other individuals tried within the U.S. criminal justice system. It is not the case that detainees in Guantanamo receive no due process of law; indeed, both Hamdi v. Rumsfeld and Hamdan v. Rumsfeld did much to improve the legal rights of the accused, requiring that enemy combatants be able to challenge their status in front of military commissions, and also setting certain–though still meager–standards with which these commissions must adhere to. But even so, the military commissions detainees are given access to lack a certain standard of fairness we might want to be present: according to Human Rights First, for instance, the Military Commissions Act of 2009 allows for the introduction of coerced statements in proceedings; the use of evidence derived from statements obtained through torture if “use of such evidence would otherwise be consistent with the interests of justice”; and it allows for defendants to be tried ex‐​post facto for conduct not considered to constitute a war crime at the time it was committed. This list deficiencies, the reader should be reminded, constitutes a mere proper subset of all the problems inherent within the current military commission system.

Even though detainees at Guantanamo lack access to as robust a conception of due process as we receive in the U.S., it is still not clear why this is such a bad thing. Here is one reason why refusing due process to detainees is morally problematic: due process constitutes an institutional check on the epistemological problems we face when imprisoning individuals. In seeking out terrorists and other enemy combatants to imprison within the detention facility, the U.S. uses specific criteria that certain individuals must satisfy in order to be considered someone who ought to be locked up. We hope that when individuals are sought out to be detained, such a task is done in good faith; that those carrying out such a mission are careful to not wrongfully lock up those who do not deserve to be locked up, and, moreover, before anyone is selected for detainment, it is made sure that they actually do satisfy the relevant criteria. But even so, mistakes can be made.

One of the functions of due process, then, is to help remedy these mistakes–to make sure that detainees actually ought to have been detained, by virtue of them having instantiated the relevant properties. This determination, obviously enough, is litigated in court when determining whether someone is guilty or innocent. When detainees are denied their day in court then these epistemological worries go unaddressed, leaving it indeterminate whether detainees really ought to be in the detention facility or not. As such, denying due process is morally bad.

While due process’ ability to remedy the epistemological problems of justice we face is important, it is not sufficiently important to make the lack of due process morally bad. Consider this example: suppose the U.S. had a policy of locking up in Guantanamo every individual who Googled the term “Islamic extremism.” Also suppose that every such individual put away in the detention facility was given a brief hearing to determine whether they actually did Google the illicit term. Even so, in the trial, the accused were not allowed to challenge the content–that is, the constitutionality or justness–of our hypothetical law. Even with the presence of this non‐​robust conception of due process, is Guantanamo Bay still morally bad? I think so, though perhaps we are closer to the truth of the matter than we were before.

The problem here is that due process does more than simply remedy potential epistemological problems, though it certainly does that. Due process also allows litigants to challenge the content of specific laws–it allows our detainees to question whether what is being done to them is just, or whether what is being done to them is constitutional. Not merely if laws are being carried out correctly, but if laws that are being carried out should even be carried out in the first place. When this second, substantive feature of due process is present, then we begin fleshing out why due process is so important a thing, and also why the lack of due process in places like Guantanamo is so bad.

When detainees are granted the ability to (1) determine whether they have actually violated specific laws that we claim they have violated and (2) challenge the content of the laws they are being charged with violating, then we begin approaching fairness. Obviously enough, the ability of detainees to exercise these two important features of due process is contingent on their ability to have a day in a fair court, not merely to show up to what seems like a one‐​sided military commission. By implication, lacking these two essential features is a morally bad thing. Since the Guantanamo Bay detention facility does lack these two features we can thus conclude that it is a morally bad place, answering our original question as to why the detention facility strikes us as morally problematic.