I appreciate the need for thoughtful review of legal cases. Nonetheless, it's just astonishing to me that no one in our government seems to have any sense of urgency about these cases. There are people in Guantanamo who have been there for five years without any remotely adequate proceeding aimed at determining their guilt or innocence of any crime, or any act of hostility against the US. Many of them were arrested far from any battlefield. In some cases, they were sold to us by people interested in collecting bounties. They have been held for years without being able to communicate with the outside world, sometimes in appalling conditions: solitary confinement, for instance.
It is past time for someone in our government to say: enough; we need to either try these people or let them go. Keeping people in prison without charges for over five years is not acceptable in a country that claims to respect the rule of law.
I realize that the courts are probably not the body to do this. Still, as I read that the detainees' rights have been denied yet again, that another appeal is expected, that it probably won't happen during this Supreme Court term, and so on ...
-- Hilzoy
She speaks of the lower court case I recently cited that upheld the MCA, denying habeas to non-citizens (and even putting citizens at risk) held in Gitmo. I do think the Constitution limits the government here. The material was there, and not just for the dissenting judge, to take the approach of Canada: "Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society." Canada might have less of a dog in the fight, but with power comes responsibility. This includes avoiding torture,* mistreatment, and blatant disregard of due process for "persons." Seems bloody obvious, even if the Constitution didn't demand it.
Robert M. Cover, who wrote Justice Accused discussing the assumed "compelled" nature of antebellum judges furthering slavery right and left, once wrote a journal article entitled "Violence and the Word." (h/t) In it, he noted that judges are persons of violence. We must realize the "violence that would flow from the words ... how [their] words were translated into deeds." Yes, their power is limited. Just not as limited as their "formalist" protestations sometimes warrant.
At this point the Court can no longer refrain from acting. I will not be a partner with other government officials in the apparent disregard for the constitutional rights of these inmates. This Court will not ignore its sworn duty to protect the constitutional rights of all citizens. I issue the following Order with the highest respect for the other branches of government, but with the deepest concern for the situation at hand. I am still hopeful that others will cooperate in seeing that the changes needed to meet these standards are implemented. This Court will not shy away in the face of charges of judicial activism when it acts to protect the fundamental constitutional rights of the persons protected thereby.
-- Barnes v. Government of the Virgin Islands
Cover cited this case from the 1970s (the piece was from the mid-1980s; Cover has since died, some might say too early) involving mistreatment in the penal system. The judge could do little, and the opinion noted rightly so under our system and given the abilities of the courts, to truly reform the system. But, he could do something. He could not give his imprimatur, which does mean something in this country (even Bush v. Gore). Also, he could threaten not to sentence non-dangerous sorts to a system that is unconstitutional. Due process required others, but he had a role to play too. And, an extreme path to take to encourage others to properly play theirs.*
Likwise, Cover cites the fascinating case spelled out in Judgment in Berlin, where a federal judge in a special court held in West Berlin (under U.S. control) refused to sentence a person to more than time served, since the court itself was at the mercy of the executive, who promised to close shop. Who knows if the person, once in prison, would be properly handled without a judicial check? Sounds a bit familiar, even in his day:
In a sense the situation was one of de jure lawlessness. But Stern's reasoning reaches beyond the case at hand; it may be extended to include, for example, the de facto state of lawlessness that attends life in many United States prisons. Institutional reform litigation -- whether applied to prisons, schools, or hospitals -- entails complex questions of judicial remedial power. Very often these questions are framed around problems of discretion in the administration of remedies. When deciding whether to issue an injunction, judges often "interpret" the law in light of the difficulties involved in effectuating their judgments.
And, on torture:
The deliberate infliction of pain in order to destroy the victim's normative world and capacity to create shared realities we call torture. The interrogation that is part of torture, Scarry points out, is rarely designed to elicit information. More commonly, the torturer's interrogation is designed to demonstrate the end of the normative world of the victim -- the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes that "in compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying."
Cover is agnostic in his article on the need for such violence, but surely the nature of his work overall suggests he was quite dubious about various applications. It is deeply troubling how we, with some hard feelings, basically accept this path. Accept keeping people in some hellhole nearby, often with the clear possibility that they didn't even do anything wrong, without basic humane treatment and process. Some basic bottom line is missing here. Some basic demand that some things must not be done. This is so even in cases like Hamdan where some nice words are supplied limiting power and reaffirming rights.
But, the people are still there. We, including the judges, are furthering injustice. When will we as a nation truly find this simply disgusting?
[The two books cited above were pretty good, though the writing was at times a bit off-putting. I mentioned them in the past. Stern's story, later made into a film, has the makings of a legal thriller. The law review article had some powerful material, but was a bit of a slog at points.]
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* "He was kept in a 9-by-7-foot cell with no natural light, no clock and no calendar. Whenever Padilla left the cell, he was shackled and suited in heavy goggles and headphones. Padilla was kept under these conditions for 1,307 days. He was forbidden contact with anyone but his interrogators, who punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds. Padilla also says he was injected with a 'truth serum,' a substance his lawyers believe was LSD or PCP."
** There can also be a hortatory flavor to court opinions. Thus, this one begins with a cry from the heart:
We simply do not know what to do with persons who are convicted of crimes, nor do we appear to know why we are doing whatever we do. ... The least pleasant task of the generally rewarding position which I presently hold is that of imposing sentence on a person who has been convicted of a crime. I cannot realistically expect that when that person has served whatever sentence I impose, that he will be any better off for having done it. I agonize over each such decision, wondering if the course I take will simply commit, rather than dissuade, that person to a life of crime. Nor is it likely that society will benefit in any significant sense, regardless of the course I take.