Think of torture. We have rightly rejected torture and yet in war routinely excuse it; not being alone in doing so does not make it right. But can’t it be avoided? To bring home the notion of precisely what is loathed and why, draw upon the facts [of the case of Bell v. Cone (2005)] which spotlight the distinctions that can and must be drawn between a most brutal of acts worthy of the ultimate penalty of death (according to some), and all others in the criminal justice context.
While a gruesome torturous murder may well deserve the ultimate penalty many heinous exhibitions of human imperfection are carried on regularly and are actually implicitly, if not explicitly, given approval at the highest levels of government in the name of war and national security, or justice or criminal justice on a very large scale, particularly overseas, and not least in the context of America's own criminal justice system of prisons and punishments. That the President should ask the question, “who authorized putting him on pain medication?” says it all.
Misuse and abuse of power by government officials has historically been subject to scrutiny in countless lawsuits under Section 1983, and has also formed the topic of numerous books, articles, and judicial opinions.
What is transpiring overseas, in Iraq, in Darfur, and in all of the other so-called “hot spots” is equally deserving of our attention and should be targeted for correction, remedial action and improvement. Poverty both domestic and abroad, and development and stewardship of scarce natural resources in all respects must also be addressed. These are the issues du jour falling under the heading of oppression.
To return to leading developments in the law in this arena, consider also how, not only that, High Court Justices, Mr. Souter and Ms. Ginsburg, found it necessary to note in an opinion concurring in part and concurring in the judgment the need for Congress to explicitly authorize locking up citizens indefinitely before the government, even with the approval of the President, may do so without an opportunity to challenge that detention:
The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of government, whose particluar responsibility it is to maintain security. * * * A reasonable balance is more likely to be reached on the judgment of a different branch.
Hamdi v. Rumsfeld, (2004).
Especially in foreign relations and even in the context of war callous action evidently create significant blow-back. A combat veteran of the Iraq war writes,
We arrested people in front of their families, dragging them away in handcuffs with bags over their head, and then provided no information to the families of those we incarcerated. In the end, our soldiers killed, maimed and incarcerated thousands of Arabs, 90 percent of whom were not the enemy. But they are now.
Another officer reports, “we can't kill them all. When I kill one, I create three.”
There is, therefore, considerable anecdotal support for the three propositions to follow, noting that persuasion—the power of the pen—is the sole source of the legitimacy of the judiciary:
A. Liberty and justice, if not security, have little to fear from an independent judiciary;
B. The judiciary and executive define their terms to somewhat different effect in theory than when honoring them in practice;
C. There is more to fear from a strong executive than from a robust judiciary.
Such seemingly transcendent issues are neither obsolete nor mere immaterial cumulative backdrop from the bygone era of the Federalists. The possibility that Americans might walk in the shoes of the rest of the world for even one day suggests viewing the state of the globe as a mirror image of conditions that faced inhabitants of the Colonies with respect to George, King of England, circa 1776.
Who can think it not oppressive to jail or abduct—politely termed “extraordinary rendition” but very reminiscent of Krystallnacht—without legal process any citizen or alien, even those suspected of terrorism, sedition, or criminal activity? We can not condone torture, nor can we look the other way when we condemn the accused in secret kangaroo courts and in summary “military tribunals” based upon scant evidence.
In view of this and additional abuses of power, to include a morally repugnant if not rapacious laissez faire capitalism itself with all of its associated shortcomings, it should be evident to many that America has become the arrogant, selfish and greedy neo-imperial superpower. It is no longer, as formerly perceived, a benign sleeping giant. The government of America is a mature, full-blown and lumbering monstrosity. Its toxic ungula vibrate to and fro in omnipresent profanity. It behaves with impunity and carelessness and callous disregard for human rights and the common good. It does not have to be this way. America is better than that.