I agree with Margalit—and Brownlee—on this score, and further believe that this possibility is an assumption or presupposition (perhaps ‘buried’ in the form of an unrecognized or under-appreciated premise) of some human rights norms and intrinsic to or an implication that follows from, some conceptions of human dignity, as a moral principle enshrined in various municipal and international legal instruments (e.g., human rights documents or constitutions). It may also be an assumption or premise of some fundamental propositions in criminal law. In any case, and however formally recognized in principle and occasionally evidenced in practice, I suspect most people do not actually subscribe to this belief. In other words, their thoughts on human nature, such as they are, lead them to deny the possibility, in principle, of repentance or redemption (for Christians, ‘conversion’ may be a condition for same) for those otherwise labeled “evil,” morally repugnant, chronically or heinously criminal, and so forth. I suspect this is one and perhaps the most significant reason that few people outside of some moral philosophers, cranks (in a non-pejorative sense), and legal practitioners, especially defense attorneys (in particular ‘cause lawyers’) express little (let alone an abiding) concern for clear violations of due process (a pillar of many domestic legal systems), which includes but need not be limited to, habeas corpus (and more widely if not deeply, procedural justice), be it, for example, in criminal procedures and proceedings involving terrorist suspects, or criminal suspects of a certain “race” or class accused of horrific crimes. A basic criminal law proposition, the presumption of innocence, already poorly understood and often ignored, has taken an Orwellian turn in the national security state’s war on terror: guilty until proven innocent. And to make matters worse, there are no standards or clear means whereby one might even do that (i.e., prove one’s innocence)!
- Bravin, Jess. The Terror Courts: Rough Justice at Guantanamo Bay (Yale University Press, 2013).
- Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System (The New Press, 1999).
- Cole, David and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (The New Press, 3rd ed., 2006).
- de Londras, Fiona. Detention in the ‘War on Terror’—Can Human Rights Fight Back? (Cambridge University Press, 2011).
- Denbeaux, Mark P. and Jonathan Hafetz, eds. The Guantánamo Lawyers: Inside a Prison Outside the Law (New York University Press, 2009).
- Freedman, Eric M. Habeas Corpus: Rethinking the Great Writ of Liberty (New York University Press, 2001).
- Hafetz, Jonathan. Habeas Corpus after 9/11: Confronting America’s New Global Detention System (New York University Press, 2011).
- May, Larry. Global Justice and Due Process (Cambridge University Press, 2011). Smith, Abbe and Monroe H. Freedman, eds. How Can You Represent Those People? (Palgrave Macmillan, 2013).
- Wagstaff, Robert H. Terror Detentions and the Rule of Law: US and UK Perspectives (Oxford University Press, 2014).