New cases get at old national traditions of fear and distrust
Greetings TortDeformers, I’m wading back into the blog waters. Thought I'd put my toe in with a quick look at how the courts are pushing us to do some serious national soul-searching about how discrimination and fear jibe with our values and our Constitution.
Distrust of the “other”—be it through racism, anti-Muslim sentiment, anti-immigrant sentiment, etc.—is ingrained in our nation’s history, but often swept under the rug. But the courts often provide occasion for us to bring this history to light and examine how to avoid the mistakes of our past so that we preserve everyone's right to dignity and fair treatment while maintaining the security for our country. (We don't have to choose between the two.)
A couple of interesting cases, related to the treatment of prisoners in a post 9/11 America, provide the context for this reflection. First, last Thursday the Supreme Court issued a landmark ruling affirming the habeas corpus rights of inmates at Guantanamo. Second, yesterday, the Supreme Court agreed to hear whether prisoners could sue two top governmental officials-- then-Attorney General John Ashcroft and then and current Director of the FBI Robert Mueller. The decision in this case, Ashcroft v. Iqbal, will also affect another lawsuit, Turkmen v. Ashcroft, a class action with seven named plaintiffs and a similar issue.
According to the New York Times, the plaintiff in Ashcroft v. Iqbal, Javaid Iqbal, was charged with document fraud for using someone else's social security card. While in prison, he says he was subjected to excessively harsh conditions and treatment: daily (and sometimes more frequent) body cavity searches, beatings, and being held in areas of extreme hot and cold.
For using someone else's social security card.
Unsurprisingly, Mr. Iqbal, a Pakistani Muslim, says this violated minimal constitutional standards for prisoner confinement and prisoner treatment.
The individual implications of these cases are clear—they could mean important constitutional protections to the people being held in prison. But on a larger level, the cases also compel us to examine what's at the heart of our principles as a nation. They ask if there’s justifiable reason to compromise the values we’ve grown to treasure, in the context of national security concerns. When the Court in the Guantanamo case determined that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times,” it indicated that there is no justification for violating the constitutional rights of prisoners.
This inevitably harkens us back to the infamous Japanse internment cases, Korematsu v. United States and Hirabayashi v. United States, in which the Supreme Court determined that the internment of and imposition of curfews on Japanese Americans after the bombing of Pearl Harbor was justifiable for reasons of national security. And like the internment cases, what forms the backdrop of these prisoner treatment cases is a fear and distrust of “others”—be they Japanese Americans, or brown people and Muslims. Obviously different particulars are involved in each of these cases, but the common thread among them all is an inquiry into whether we’re ever going to be equipped to acknowledge the racism and fear/distrust of the “other,” whomever that may be at the time, that fuels much of the way individuals are treated in this country.
Are the courts equipped to make this inquiry? Probably not alone. But if anything, the existence of these cases could spark a larger national conversation, one which needs desparately to be had. In this way, the cases are an example of one of the important functions of our civil justice system—to engage the public in difficult yet necessary conversations about fairness, justice, and equality.