It is Not about our Values; It is about Theirs

Guantanamo and the Law
By John W. Howard
December 5, 2007

Among the many odd affectations of the American Left is its unjustifiable confidence in the judicial system as the answer to all problems great and small. Perhaps this grows out of the Left's overweening belief that only its adherents can really know what is good for people and its consequential squint toward authoritarianism. Maybe it is because it knows that it cannot achieve its ends democratically in a country that, in spite of the Left's best efforts, still celebrates rugged individualism and jealously guards individual prerogative and liberty at large.

Whatever the reason, the nation suffers from the dangerous consequences of this fundamental misunderstanding of the nature and purpose of law, and its massive misapplication at the hands of Leftist lawyers, judges and academics.

The sad snake oil sold to the American people is that a lawsuit is the economic equivalent of winning the lottery. They are told, and believe, that for every wrong there is a remedy and that courts are simply tools for the enrichment of those who have suffered some disappointment. As a result, courts throughout the nation are clogged with anxious plaintiffs complaining of simple slights that should never have seen a courtroom. A recent case was filed in San Diego by an electrician who got into an argument with a co-worker and was dismissed with a common epithet comprised of two words, the second of which was "you." It seems the poor dear experienced extreme emotional distress from this egregious act and asked for court intervention to relieve his suffering.

Though the case was dismissed, it consumed court and attorney time and resources – and is symptomatic of the resort to courts for civil relief for the slightest of insults. It arises at least in part from our culture of victimhood and the plaintiff's bar's success at squeezing ridiculous results out of juries. It comes, too, from the Left's success in getting the American people to buy the idea that companies should pay when someone is annoyed, irrespective of whether or not the companies have done anything wrong. And so plaintiffs roll the dice and see if they can cash in, encouraged by mobs of plaintiff's lawyers by promises of undeserved riches.

At the same time, the revolution wrought by Supreme Court jurisprudence in the 1950s and '60s convinced the public that they, by gosh, have rights. The Court found in the penumbras of the Constitution newly minted rights and issued attenuated opinions enshrining protections never contemplated by the Founders. A nation that freely accepted the death penalty at its founding suddenly discovered that it might violate the prohibition against "cruel and unusual punishment." Put aside the fact that the Congress that passed the amendment making that prohibition existed at a time when the death penalty was in full and frequent use throughout the land; a fact that did not seem to trouble those who passed the prohibition and who saw no contradiction in the act.

Criminal defense lawyers pressed ever more creative Constitutional theories and suggested inventive new remedies for their violation. So it was that criminals were set free by courts on the flimsiest of grounds to further engage in their predatory acts. The unsurprising result was an explosion of crime in the late '60s and throughout the '70s, as those inclined to criminality concluded that they were unlikely to be caught, less likely to be convicted, and still less likely to be punished if they were.

This prompted in the advocates of expanded readings of Constitutional rights no word of protest from their lofty perches high above the mean streets the citizenry had to navigate. It was easy to self-righteously suggest that this was an appeal to the best in us when they paid no direct consequence for it. Those paying the highest price were, as usual, the poor and most vulnerable who suffered a virtual holocaust of crime because modern Constitutional theory encouraged increased criminality. That is the trouble with idealism unleavened by experience and common sense. It is easy for a judge to let an obvious criminal free when protected by bailiffs and metal detectors in the armed citadels we call "courthouses."

It was only when the public, genuinely outraged by the excesses of a criminal justice system warped by Leftist academic legal theories, rose up in protest and handed votes to every politician who suggested he would fight crime and bring the courts to heal. It is no accident that Republicans who, until the late '60s appeared to be a permanent minority, began their inexorable political assent. They were for the death penalty. They were for determinate sentences. They were for putting the bad guys behind bars and leaving them there. And they were rewarded with votes.

But the impetus to odd Constitutional theory goes on. Today, the Supreme Court will hear arguments in Boumediene v. Bush, a case bearing on the "rights" of Guantanamo detainees. It is the next in line of a series of cases pressed for the purpose of vindicating odd notions of rights during wartime and the success of which would result in the same geometrical increase in international crime that was the result of the proponents' efforts during the Warren Court era.

The effort is no less than the ambitious attempt to apply all of the attenuated Constitutional theories that resulted in our last major national crime wave to international terrorism. It is an effort to extend American rights to non-Americans committing their crimes far from America against Americans. And it is being sold with same self-regard and self-righteousness that was employed in the '60s: "We are better than that. We must live up to our ideal of equal justice under the law." Equal justice under the law applies to those in the United States and only to those in the United States or subject to its laws.

The immediate question before the Court is whether Congress can oust the courts of jurisdiction to hear habeas corpus petitions. That is hardly a question worth debating. The "checks and balances" Leftists tout in other contexts exist so that each branch can, one way or another, limit the power of the others. Congress has always had the power to oust the federal courts of jurisdiction over matters of controversy. Indeed, the federal courts below the Supreme Court are a matter of grace by Congress, not a mandate of the Constitution. Congress has the power to repeal the various judiciary acts that create them without running afoul of the Constitution, which does not require that they be established.

Although the immediate matter before the Court is the more esoteric one of jurisdiction and Congress's power to limit it, there is no question but that the greater issue is whether American rights extend to other than those in the United States, subject to its laws. It has never been the law of this nation that the rights protected under our Constitution extend to every human being in every place on the globe. Law is a function of the culture in which it takes root. The United States was founded largely by the children of the enlightenment whose lives were informed by the profoundly civilized philosophical project of individual liberty. As a cultural institution, it depends on the underlying assumption that those who inhabit the culture have similar, if not congruent, social values and have bought into the overarching cultural assumptions that give cohesion to their society. Without the embracement of basic cultural and ethical norms, cultural standards will not be achieved by citizens, and the assumptions that make up voluntary obedience to law will not exist.

The fundamental mistake made by those who argue for American rights for Guantanamo detainees is that American law is effective for governing people who share neither American values nor American cultural norms. Law is the governmental imposition of the basic rules of a society. It is about the enforcement of fundamental cultural norms on those who accept an overarching cultural standard. Our treatment of foreign terror suspects is not about our values, it is about theirs. Our values are intact, but our constitutionally protected liberties can extend only to those who accept the basic cultural values that make them work. Those who reject those values do not accept the duties that go with living in the society that embraces them and, without the acceptance of those duties, the protections that accompany them for those who do, give only advantage to those who have no call on that benefit.

It is odd that the very people who argue that President Bush is hopelessly naïve in thinking we can promote democracy in countries that have no historical understanding of it, are the very same people who think that the complicated mechanisms of American law should be set to the wholly unprecedented situation of an inchoate international terrorist effort. The fact is that planted democracy is much more likely to take root than the imposition of American standards of constitutional protection is to serve the very function of law: to protect the innocent.

Extending American due process rights, including habeas corpus, to foreign nationals in time of violent conflict, has not only never been done by any nation at any time, it will lead to nothing but chaos and confusion in our soldiers who will be expected to understand legal norms that most lawyers do not even comprehend. The battlefield is a bad place to test new jurisprudential ideas and it is destructive to the mission. It has been said that the Constitution is not a suicide pact and where you are fighting people who will not be bound by the cultural values that serve as the basis for law, extending the protections of that law is not only inappropriate, it is wrong-headed.

That is why the plaintiffs in Boumediene are wrong. The cases are legion in which court after court, including the United States Supreme Court, has concluded that American Constitutional rights are enjoyed by Americans and those who commit crimes in our country. That is the conclusion of Johnson v. Eisentrager, a 1950 United States Supreme Court case in which it was decided that German detainees at the end of World War II were not entitled to habeas corpus. In ruling, the Court observed that extending the right to habeas corpus to foreign nationals in foreign countries would "hamper the war effort and bring aid and comfort to the enemy." Just so.

We live in a dangerous time with dangerous and determined enemies not tethered to formal governments. As such, they are not entitled to the protection of the Geneva Conventions. We have extended to them far more rights than any nation ever has enemy combatants. They have contested hearings before military judges; the same types of tribunals our military men and women get when accused of crimes in uniform. They have a review right in a federal court. For those who say "we are better than that" as if, somehow, extending less than the full protection of the Constitution of the United States to those not entitled to any of its rights is less than we should do, we must ask: how many nations provide due process to their own citizens as great as those we do these detainees? Why should these detainees receive more rights than our own soldiers?

Who, among nations, is in a position to criticize our handling of these prisoners? What nation would extend the protections we do? Where, then, does anyone get the idea that we lose our respect among nations when we provide more rights to these detainees than any of them would? Any nation or national leader who suggests that we are betraying our ideals in this regard is simply playing for political advantage. And, any such leader should be challenged to meet even these standards in his own country.

In the end, our treatment of these detainees is more civilized than they have any right to expect and certainly more humane than they would receive at the hands of any other nation. I spoke with a nationally known liberal radio talk show host who vigorously disagreed with my position in this regard, accusing me of being inhumane. When I pointed out that if we want to keep terrorists from being released by federal courts to terrorize again, the only alternative would be for soldiers to kill rather than capture them; he said that that would be more acceptable. So much for liberal compassion.

The original article can be found at http://www.familysecuritymatters.org/

Posted December 9, 2007 07:43 AM
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