The Liberal/Conservative Role Reversal in Ends vs. Process in Detainee Rights

Andrew McCarthy’s debate with Katherine Darmer at Chapman Law School this week (podcast of the redux on Hugh Hewitt’s show later that day here) made me realize something. When it comes to domestic affairs, conservatives are generally preoccupied with process-oriented justice, and progressives with ends-oriented justice. However, when we start speaking of Gitmo and foreign affairs and all things constitutionally relegated to executive discretion, the roles curiously flip. All of a sudden, progressives start singing the due process tune for the benefit of enemy combatants (or whatever we are calling them these days), and bollocks to that prattling on about making sure we don’t all get blown up. On the other side, those conservatives who champion a value-free justice that guarantees a due process of law seem to care little if at all about deprivations of freedoms and dignities, and are willing to give the benefit of near unbounded doubt to our chief executive and his unseen underlings.

At the risk of appearing to rush in to defend the latter position, I think the conservative position has a ready defense rooted in basic political theory. The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process. As a political and moral matter, of course, it is always prudent to afford as much process and respect for humanity as possible and to let our leaders know that we are watching them. And, to our great credit, we do just this. But let’s not get silly and suggest that there ought to be additional legal barriers preventing our leaders from ensuring our own survival in time of war.