The damage done by the Bush administration to the rule of law occurred over a few years – relatively quickly in legal terms. Repairing it will be a much longer task, as repairing always is.
For more on pruning back executive power see Pruning Shears.
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Eric Holder’s recent announcement on detainees was covered mainly for his decision to bring Khalid Sheikh Mohammed (KSM) to New York for trial. Less noted was the designation of military tribunals for five others. Civil libertarians objected to it, with Glen Greenwald doing a fine job summarizing their argument (“what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.”)
In addition to system shopping, where government decides which proceeding to use based on the maximum legitimacy conferred while still largely guaranteeing a conviction, Jonathan Hafetz pointed out (via) that there is also the much larger “indefinite detention” system. Since we have held many of these people for years and years now, with no demonstrated intention to attempt anything like a final disposition of their cases, it seems fairly obvious that the president’s intent to implement indefinite detention is already in place.
These are huge problems and they will not go away on their own. It’s good to see organizations like the ACLU and the Center for Constitutional Rights filing lawsuits to establish human rights for them, force disclosure of sordid details and otherwise pressure the government to own up to its past with the goal of changing its behavior going forward. Their efforts are a great and necessary service.
That said, I think the fears for the implications to our system of law do not take into account the obstacles created by years of relentless neoconservative fearmongering. Right wing ideologues used the shock and uncertainty after 9/11 to yank public opinion to the right. The unspoken bargain seemed to be that they would largely be given free reign to do as they pleased – even if it clearly violated the Constitution – as long as there was not another terrorist attack. Persuading the country to stop paying attention to such brazen and cynical appeals to our most primitive fears will have to at times come in small steps.
Just look at the shrieking and hyperventilating that greeted Holder’s announcement. It is not simply the usual hissy fit that Republicans have perfected as a means to hijack story lines, though that is part of it. It is also an almost palpable fear on their part that the framing they have been so successful with and have come to rely so heavily on is about to be discredited. The country was endlessly told Guantánamo held the worst of the worst. What happens if the individual universally regarded (via) as the worst there is gets brought to the site of his crime for a trial, and we are not made less safe as a result? What if instead the world generally considers it as a legitimate proceeding that even our enemies must grudgingly acknowledge? At that point what terrors would the right have to frighten us with? The stakes for them are as high as they get in politics – the very legitimacy of their worldview. No wonder they are screaming.
(Those last two points – progress in small steps and dispelling GOP shadows – may have a domestic parallel in the health care debate. I think liberals are making a mistake by treating the current moment as a once-in-a-generation opportunity that we either completely succeed or fail at. It should be treated as a cause, and we need to have the determination and persistence to keep at it. Fight like hell for the best deal right now, and once the flaws of the new system are revealed come back for more. And once the reforms start phasing in the public will realize all the dark warnings on the right are nonsense.)
The goal is not to “win” the argument but to convince the larger part of the electorate that they have been deceived. The way to do that is to assemble evidence piece by piece, and the trial of KSM is one of the biggest. As time goes on the picture will become clear, and that will make the public open to proper judicial treatment for more and more detainees. I understand the urgency of those who have languished for years and know that the American public’s evolving view on detention should not be their problem; I also understand the serious reservations of those who warn of the implications for the administration’s shuttling of suspects into different venues based on the prospect of securing a conviction. Still, I can’t help but be encouraged by the direction we seem, slowly, to be moving.