Tuesday, November 21, 2006


Fear, and the fear of war in particular, is a time-tested recipe and tool of oppression. Freedom from oppression and its incidents is the essence of democracy. To think oppression only as likely to occur as a tsunami on the banks of the Potomac just makes it that much less reassuring to know that if the subject is officially sanctioned oppression, it can be, and probably is, coming soon to a theater near you. Oppression, pure and simple, is a condition from which a freedom-loving and democratic People have the most to fear. In the hierarchy of causes to be abhorred, cruelty and ignorance, intolerance and bigotry are not far behind.

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.


Barry Kissin said...

I certainly agree with the points made in "Oppression." The conclusion that characterizes our country as a "greedy neo-imperial superpower" is not only accurate, it is necessary. Our societal choices must be informed by this awareness. Otherwise, with respect to issues as diverse as global warming and health care, we will continue to proceed as blindly as we are so obviously proceeding in Iraq. What a revolting spectacle --this constant national discussion that is devoid of the simple notion that the solution to an ongoing crime is to STOP. Instead, we continue to dignify the obfuscations of the criminal architects of our immoral and illegal invasion.

I want to crystallize this point. What our judicial system pretends to be some kind of difficult (oh so subtle) trade-off between liberty and security is utterly contrived. There is no such trade-off. Liberty is being curtailed for the sake of protecting and nurturing entrenched interests. And security is being sacrificed for the sake of protecting and nurturing entrenched interests.

secretagentman said...

The liberty v. security trade-off Justices Souter and Ginsburg referred to was pretty much confined to the context of executive versus legislative power, don't you think? Without question, both these institutions are highly entrenched, steeped, in fact, in tradition. We, the People, the Founders, and those who must interpret the Constitution can not allow either of these institutions to operate with unfettered powers.

Yet, I agree completely with Barry's final two sentences. Thanks.