Thomas More Institute

To the delight of many of his foes, and no doubt to the chagrin of many who voted him, Barack Obama has announced the resumption of Bush-era Military Commissions for trying detainees held at Guantánamo Bay.  Long after the deadline passed for the President to deliver on his pledge to close Guantánamo within a year of taking office, all pretence of desiring to do so seems to have been dropped: Obama has signed an executive order approving the practice of holding detainees indefinitely without charge.

Sir Malcolm Rifkind, the former Foreign Secretary and current Chair of the Intelligence and Security Committee, has written approvingly of Obama’s decision in The Daily Telegraph.  Sir Malcolm’s justification for adopting this position seems confused.  He tells us that ‘the central problem is the hard core… who will be neither tried nor released… the evidence that they are hard, determined terrorists is often overwhelming. But it may have been obtained by covert means, which cannot be revealed without endangering the lives of innocent people, or revealing your surveillance methods, to the benefit of terrorists still at large.’ Yet the point of creating secretive Military Commissions was precisely to prevent this ‘overwhelming’ evidence being ‘revealed’ to the general public.  Only military lawyers and attorneys with strict security clearance may participate in the trials, and the Presiding Officer is permitted to conceal evidence even from the accused himself.  Rifkind speaks of a supposed ‘dilemma’ over how to deal with these prisoners. ‘If it is thought certain that they would try to commit such atrocities if released, should the acceptability of their incarceration be judged by the same criteria as we apply to “ordinary” crime?’, he asks.

Even granting the very dubious premise that international terrorism is different in kind, rather than just in degree, from ‘ordinary’ crime, and that its treatment calls for special procedures, it would be difficult to find a clearer example of the pop utilitarianism that now informs decision-making by Western governments than the assertion that it is acceptable to subject some people (including perhaps minors, as have been held in Guantánamo) to perpetual imprisonment because they might pose a serious danger if released, even though some have already been held captive for nearly a decade and the authorities have yet to build a case capable of securing conviction even from a rough Military Commission that lacks even the minimal safeguards of ordinary military law, and which a number of prosecutors have described as ‘rigged’.

When Jeremy Bentham, the father of modern utilitarianism, first published The Principles of Morals and Legislation, his intricate system of moral reasoning was famously dubbed ‘ethics for pigs’.  Moving beyond the sarcasm, it is true that the attraction of hedonistic moral systems such as utilitarianism will be irresistible when a society holds as its highest ideal material comfort, and when health and safety are regarded as more important than truth and righteousness.  Worse than this, blinded as they are by a search for mediocre comforts, many – even those charged with responsibility for the common good – can seemingly no longer grasp even the possibility of examining moral questions within another framework.

To label utilitarianism ‘ethics for pigs’ is, however, too complimentary, as it implies some kind of coherent moral ideal.  In fact, it completely strips human beings of their status as moral agents.  Within such a framework, actions that a man performs are no longer worthy of moral evaluation in themselves, but only insofar as they lend themselves to realisation of particular states of affairs in the external world.  In this manner, we can – and do – justify almost anything (for example, the abduction, torture, and other activities associated with Guantánamo) provided we can convince ourselves that our actions are – or might reasonably be construed as being – a contribution to some vaguely defined ‘greater good’.  This amounts to the abolition of true morality which assumes persons are not machines to be judged on their usefulness, whatever the states of affairs that are produced, but are in fact rational beings whose decisions have moral value in and of themselves.

Utilitarians spend excessive amounts of time furrowing their brows over possible ‘consequences’ of courses of action. ‘What if these alleged terrorists are released, and then commit some sort of atrocity?’ And so on.  We cannot, of course, know for certain that they will not.  But then we do not know for certain what dire consequences might come from refusing to release them.  After all, morality is not about conducting exhaustive analysis of all possible consequences of a course of action, but rather about determining the right thing to do, and about then doing it.  Ironically, the one consequence never considered important by utilitarians is that which is most important: the likelihood that a given action will form virtue or vice in the person performing it, and therefore contribute also to forming a virtuous or vicious society.  Difficult though it may be for governments to understand, there are things in life worse than international terrorism, and the abandonment of civilised principles of criminal justice by formerly virtuous societies is one of them.