Tuesday, June 17, 2008

Boumediene, Rights, and Lynch Law

Notes on the Boumedienne case and the controversy surrounding it.

The Case. The issue was whether Boumediene, a detainee at Guantanamo, had a "habeas corpus" right under the U. S. Constitution to demand that the Bush administration show why they were detaining him.

A 5-4 Supreme Court majority held that Boumediene had that right and overtuned a section of the 2006 Military Commissions Act which denied habeas corpus rights to detainees.

The spin from the right and left isn't quite that simple.

Those Supporting the Court Decision include Barack Obama, Glenn Greenwald, and some conservatives like George Will and Steven Taylor. The core argument is that the whole Western legal tradition embodied in the Constitution and extending as far back to the Magna Carta stands against the kind of unlimited power to imprison people that the Bush administration claims in relation to terrorist suspects. A large number of the suspects held at Guantanamo were detained on bad tips, stereotypes, and bounties rather than anything approaching solid information and proved to be completely innocent. The fact that they were held incommunicado for years shows why habeas corpus rights are needed.

Those Opposing the Court Decision include war criminal John Yoo (of "torture memo" fame), George Bush, John McCain, and a host of right-wing commentators. The core argument on the right is that forcing the U. S. government to grant habeas corpus rights will result in known terrorists going free and continuing to fight against the United States. The strongest held subsidiary argument from the right is that the Supreme Court is once again acting as an "imperial judiciary" in overriding the presidency and Congress during a time of war. What the right means by "imperial judiciary" will be taken up later.

The War Crimes Sub-Text. But the spin doesn't get at the enormous can of worms under the surface of the Boumediene decision. The Bush administration has a lot reasons for their extreme reluctance to produce evidence and few of them have anything to do with the war on terrorism. The Bush administration does not want to reveal exactly how flimsy the evidence was for arresting people like al-Jazeera cameraman Sami al-Haj who was detained for six years before being released for lack of any evidence. That would be bad publicity for the United States both here and abroad. Given that a considerable amount of the Bush administration's "evidence" was tainted because of interrogration techniques (waterboarding, sensory deprivation, stressful positions, religious harassment, death threats, etc.) that have been traditionally defined as torture, the Bush administration has little confidence that the detentions would stand up to any kind of legal challenge.

Worse than that, the Boumediene decision also implies that the whole Bush administration apparatus for dealing with terrorist suspects is illegal. It appears that the Bush administration is in an awkward either/or situation with their strategies for dealing with terrorist suspects. Either extremely painful and humiliating interrogration techniques, keeping terrorist suspects on prison ships, transfering terrorist suspects to other countries to be tortured, refusing to allow terrorist suspects to have contact with relatives or international agencies, and the like are legal or those actions constitute a system of criminal activity. If the Bush administration has been engaged in systematic crimes against humanity, they should be held legally accountable.

And the question of the criminality of the Bush administration's approach gets down to rights. If detainees like Boumediene have rights, all those involved in the American detention apparatus from the interrogators to George Bush are vulnerable to prosecution as war criminals.

And the Supreme Court found that Boumediene has rights according to American law.

That's one of the reasons why the right has been so outraged over the Boumediene decision.

The Lynch-Law Subtext. One of the issues that left-leaning writers like Glenn Greenwald miss is the right-wing's contempt for the American legal system. In the U. S., the right has never accepted the legitimacy of Supreme Court decisions that expanded the rights of accused criminals to include a guarantee of legal counsel, insistence that accused criminals be informed of their rights, and protection against abusive interrogations and treatment.

According to John Yoo:

Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
Evidence, proof, Miranda Rights, swarms of defense lawyers--Yoo has just as much contempt for them in the United States as he has for them in relation to the terrorist suspects.

But why is that the case? I would argue that the Bush administration, right-wing legal activists like Yoo, and conservative defenders of the Bush administration's treatment of detainees are heavily influenced by a second legal tradition that has been very powerful in American history but isn't generally acknowledged by legal theorists.

That's lynch law.

Lynch Law. Lynch law is most often identified with practices in which a black man or woman accused of a crime is apprehended by a crowd of white people and executed a trial, judge, or jury, or any other ability to defend themselves.

However, lynch law should be defined more generally. Lynchings per se were only the most flamboyant manifestation of a legal framework designed primarily to maintain the social system of white supremacy rather than adjudicate competing claims according to law.

There were several other elements in the lynch-law legal system of the American South during the segregation period. These include the exclusion of African-Americans from positions as police officers, lawyers, judges, and members of juries, ignoring evidentiary standards in making criminal accusations against African-Americans, using coercive techniques to gain confessions, and refusing to accept evidence from African-Americans against white people.

The guiding assumption of lynch-law as it applied to the white South was that the overriding goal of the legal apparatus was to maintain white supremacy and that African-Americans had no claims to "rights" that white police, sheriffs, courts, prisons, or crowds needed to recognize.

In this broader sense, lynch law can be said to apply at least partially to the rest of the United States. Authorities were engaged in lynch law to the extent that police authorities viewed the larger social imperative of controlling poor, working-class, Hispanic, or gay populations as overriding the individual rights. From this point of view, public officials and the police themselves believed that police could legitimately instigate conflicts with members of the "fringe" or "suspect" groups, arrest suspects on flimsy evidence, beat up the suspects they arrested, and coerce confessions. Lynch law was not as pervasive in the rest of the United States as it was in the South because it neither included lynchings per se or excluded members of fringe groups from voting or public office.

However, lynch law was the dominant mode by which authorities dealt with those who were outside the circle of social respectability.

Lynch Law vs the Imperial Judiciary. The right doesn't put it this way, but much of right-wing commentary on the post WWII legal system is animated by a nostalgia for lynch law. Most of what has made the Supreme Court an "imperial judiciary" is what the courts have done to de-establish white supremacy and social control as principles guiding the operation of the criminal justice system. In Gideon v Wainwright and Miranda v Arizona, the Warren Court compelled the legal apparatus to recognize members of suspect groups as having the same rights as respectable white people and creating a procedural apparatus to "guarantee" that those rights are recognized in practice. In doing so, the Court overrode the federal government, state governments, and public opinion, and, in that sense, acted as an "imperial judiciary." The same was the case in the South where courageous District Court judges acted to ensure enforcement of civil rights laws and court mandates against the will of governors, state legislatures, and white opinion as a whole.

However, neither the spirit nor the practice of lynch law have died in the United States. The police, conservative legal activists, and Republican administrations were offended by the original court decisions and have done as much to re-establish the original lynch-law system as they could. This includes the police practice of racial profiling (which conservative legal activists have defended to the hilt), efforts to overturn Miranda, introducing various rationales for curtailing Miranda rights, adopting stop and frisk techniques for controlling poor urban populations, etc. A good chunk of Supreme Court history since the 1970's has been taken up with adjudicating the efforts of the right to re-expand the privileges of the police in opposition to the rights of suspect groups.

Guantanamo and the Spirit of Lynch Law. Viewed in relation to this thumbnail sketch of American legal history, it would be fair to say that Bush officials viewed the whole question of how to treat detainees from the perspective of their disgust with the whole system of recognizing the "rights" of accused people according to American and international law. For David Addington (Dick Cheney's legal adviser), John Yoo, and other right-wing legal activists in the Bush administration, the treatment of detainees represented a golden opportunity for them to by-pass the "law of rights" and re-establish a version of lynch law for detainees.

In this context, the purpose of the Bush administration's legal initiative was to institute a system of detention at Guantamo systematically designed to abrogate any sense of individual rights, develop a variety of ways to hide the treatment of detainees from American and international scrutiny, and provide legal justifications for the system.

But the key to understanding the Bush administration's motivations is that they're not ignoring American and international law so much as they're rebelling against a human-rights oriented legal framework that they've never believed in.

In this sense, the Bush administration should be viewed as carrying on the very American tradition of lynch law.

Note: Links later.

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