TorteDeForm

Kia Franklin

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.

Kia Franklin: Author Bio | Other Posts
Posted at 3:34 PM, Jun 17, 2008 in Civil Justice | In the News | Supreme Court Rulings
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Comments

What, no mention of the almost 15,000 European Americans, (almost 11,000 German Americans and approximately 3,500 Italian Americans) who were interned in the United States during World War II? No redress, no apology, no court review for these folks!

Posted by: CrystalCity1945 | June 17, 2008 6:56 PM

Anyone else feel this way? All ID thieves, all hackers, all spammers, first get tortured for weeks. Then, they hang, with their bodies left to sway, the entire week, outside Hacker Con.

I wonder if Kia has ever complained about conditions for Americans in any Pakistani prison, this rent seeking lawyer terrorist lover. If she has, I missed it.

Posted by: Supremacy Claus | June 17, 2008 6:58 PM

Wow--I did not know about this internment. It's atrocious. Thank you for sharing. Any other resources you can share would be greatly appreciated.

Posted by: Kia Franklin | June 18, 2008 10:46 AM

Kia: Re your last post... simply go to my website which is linked with my Name, but just in case... go to http://www.foitimes.com

And then your local library may just have my book:
The Prison Called Hohenasperg: An American boy betrayed by his Government during World War II, Universal Publishers, Parkland, FL, 1999

A synopsis of the book follows:

Unknown to most Americans, more than 10,000 Germans and German Americans were interned in the United States during WWII. This story is about the internment of a young American and his family. He was born in the U.S.A. and the story tells of his perilous path from his home in Brooklyn to internment at Ellis Island, N.Y. and Crystal City, Texas, and imprisonment, after the war, at a place in Germany called Hohenasperg.

When he arrived in Germany in the dead of winter, he was transported to Hohenasperg in a frigid, stench-filled, locked, and heavily guarded, boxcar. Once in Hohenasperg, he was separated from his family and put in a prison cell. He was only twelve years old! He was treated like a Nazi by the U.S. Army guards and was told that if he didn't behave he would be killed. He tried to tell them he was an American, but they just told him to shut up. His fellow inmates included high-ranking officers of the Third Reich who were being held for interrogation and denazification.

The book tells how the author survived this ordeal and many others, and how he fought his way back to his beloved America.

Posted by: CrystalCity1945 | June 18, 2008 6:01 PM

Not only is selective internment of European Americans during WWII atrocious but the methods to which the Department of Justice has reached to keep the records from being investigated is unbelievable. Three times a bill(Wartime Treatment Study Act (H.R. 1185/S.621), to investigate European American internment has been blocked by a secret hold in the Senate by a anonymous Republican Senator. Then when the bill made it to the Senate Judiciary Committee the DOJ intentionally sent misleading information to the committee to block any movement on the bill.

Hopefully, most Americans will never know how it feels to be caged behind barbed wire, nor will they know the intense emotional strife that family members endured as a result of the unknown status of loved ones behind barbed wire. But let me assure you it is nothing compared to the sadness that engulfs you when you realize that the ideals of America are not universally applied. Internees all realize that hysteria gripped America during WWII and many mistakes were made regarding civil liberties. But how can the government explain the refusal to examine the records of injustices to European American internees more than 65 years after WWII?

Why no civil liberties group steps forward to assist these victims in their advanced years is beyond me especially since this would be a landmark case.

Posted by: Ft. Lincoln | June 18, 2008 6:37 PM

Ft. Lincoln: Well stated!

Posted by: CrystalCity1945 | June 18, 2008 7:32 PM

The reason no civil liberties group is interested is two-fold:

1) they don't want to besmirch the reputation of FDR, one of the left's idols, President of the USA during this period
2) there aren't enough survivors left for it to make sufficient headlines

Posted by: Paul W Dennis | June 18, 2008 11:30 PM

The reason no civil liberties group is interested is two-fold:

1) they don't want to besmirch the reputation of FDR, one of the left's idols, President of the USA during this period
2) there aren't enough survivors left for it to make sufficient headlines

Posted by: Paul W Dennis | June 18, 2008 11:32 PM

In regards to sufficient headlines, the wire service knows how to gin up controversy on a subject if they choose too. Over the years I have seen them supress discussion on the Wartime Treatment Study Act by a number of orchestrated methods. One being to label all the German American internees as "Nazis". So, honestly I do not buy that argument.

The FDR argument is a bit more persuasive, however, the oppostion on the Wartime Treatment Study Act is not coming from the left but the right.

It appears there is a strong motive to protect the Department of Justice from investigation and scrutiny. No one wants to hold them accountable to the rule of law. Perhaps, both political parties don't want the other party to exercise executive power or use the principle of the "unitary executive" but they want to reserve it for their own party. Or, the skeletons are so damning to our country's image of justice around the world that no one wants to uncover them. Of course, the irony is an impartial, honest, and accountable DOJ benefits the American public no matter which party they affiliate. Just think if habeas corpus rights would have been defended concerning European Americans, perhaps Guantanamo would not have even been an issue.

Posted by: Ft. Lincoln | June 19, 2008 2:26 PM

I agree it has more to do with not wanting to tarnish the reputation of our nation as a whole than FDR. That, and if the DOJ was investigated, we might demand limits on their power. And God knows that if we try to limit the DOJ in *any* way, that's just going to embolden the terrorists, lead to more American deaths, and probably destroy the universe.

Posted by: Justinian Lane | June 19, 2008 2:39 PM

I was one of those interned, and as stated the only survivor, of my family of five. We lost our home to looters and foreclosure, with the loss of those valueless but irreplaceable things like family pictures of forebears,a treasured silver piece being the most painful for my mother.The courts up to the Circuit Court affirmed that haveas corpus was properly suspended, that counsel was properly denied, that the Alien Sedition Acts of 1798 still were valid, that it was proper to forbid air travel, cameras, weapons, shortwave radios and other onerous restrictions. In short, the legal system failed us, and it was political action by the Senate that secured my freedom more than two years after the war had ended. None of us seek compensation, as accorded Japanese, of $20,000 each, but wish only that internment be studied by an acceptable commission for need, efficacy,administration of, and consideration of human rights. I was interned longer than any Japanese Crystal City 2

Posted by: Eberhard Fuhr | June 19, 2008 5:44 PM