Taking Liberties: The War on Terror and the Erosion of American Democracy (38 page)

•  the Fourth Circuit’s dismissal of a case brought by “extraordinary rendition” victim Khaled el-Masri as precluded by the state secrets privilege,
⁵⁴
despite the fact that the details of what happened to him—he was kidnapped with the collusion of American agents from a Macedonian bus and taken to a cell in Afghanistan where he was locked up, interrogated, and tortured for five months because his name was similar to that of a suspected terrorist
⁵⁵
—had been published in media around the world and all Khaled really wanted was an apology
⁵⁶

•  the Second Circuit’s dismissal of another extraordinary rendition case brought by Canadian Maher Arar, on different procedural grounds.
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The Canadian government had investigated Arar’s complaint that American agents had kidnapped him at JFK airport and sent him to Syria where he was abused and tortured, concluding that his claims were all true and that suspicion of him had been unfounded. The Canadian government issued a formal apology to Arar for its role in his mistreatment and offered him damages in the amount of $10.5 million.
⁵⁸
He got no hearing and no apology in the United States of America—just procedural excuses for slamming the courthouse door in his face. Obama Administration lawyers urged the Supreme Court not to review the decision; neither the executive branch nor Congress has shown any interest in finding out whether Maher Arar or Khaled el-Masri is owed an apology.

In our judiciocentric society, when the courts, especially the Supreme Court, remain silent on the constitutionality of government actions, that silence begins to sound like acquiescence. It is also notable that the three
cases concerning the domestic impact of antiterrorism strategies that the Supreme Court did agree to hear—
Holder v. Humanitarian Law Project
,
Ashcroft v. al-Kidd
, and
Ashcroft v. Iqbal
—were all cases in which the government had lost. In all of the cases the Court refused to hear, the government’s position had prevailed in the courts below.

The record in the lower courts has been only slightly less one-sided. Bush and Obama Administration lawyers, as many of the cases discussed have shown, offered the lower federal courts a smorgasbord of procedural excuses for avoiding constitutional questions about antiterrorism measures—not just the state secrets privilege—and most courts, especially the Courts of Appeals, played along. The NSA spying program, even while it was clearly illegal, evaded judicial scrutiny because of one of two hyperextended versions of the standing doctrine: either (1) that lawyers unable to talk to their clients do not suffer any recognizable injury,
⁵⁹
or (2) that everyone suffers injury because of this program and so the plaintiffs are not special enough for a court to hear.
⁶⁰
The
Al-Hara-main
case—where the plaintiffs could not prove that they were injured because they were forced to pretend that the document proving that they had been spied on did not exist
⁶¹
—represented a new low in standing arguments. Bush and Obama lawyers have also argued that government officials should be declared immune from lawsuits about patently illegal activities—in another NSA challenge, for example.
⁶²
Obama lawyers continued to argue that John Ashcroft should be found immune from Abdullah al-Kidd’s lawsuit challenging his pretextual arrest as a “material witness.”
⁶³

Another extraordinary rendition victim, Ethiopian citizen Binyam Mohamed, tried to get his day in court to complain of his shocking detention and torture at the behest of American agents. He had spent eighteen months locked up and, among other horrifying abuses, had his genitals repeatedly sliced with razor blades and hot, stinging liquid poured into the open wounds. The district court dismissed his case without letting him or his co-plaintiffs prove that the defendant, Jeppesen Dataplan, had collaborated with the CIA in illegally flying him to Morocco, Afghanistan, and finally Guantánamo Bay. The plaintiffs’ lawyers had learned from the earlier extraordinary rendition cases that it was impossible to have the government held responsible for his treatment, so they sued the government’s ally and enabler—the company described in an article by Jane Mayer as “the C.I.A.’s travel agent.”
⁶⁴
Jeppesen couldn’t claim governmental immunity, but the government insisted that the state secrets privilege should bar
all litigation about extraordinary renditions anyway and the district court agreed, dismissing this case too.

The plaintiffs appealed. After Bush Administration lawyers had filed an appellate brief maintaining that the district court was right to dismiss the case, Obama took office—about three weeks before the case was scheduled to be argued. At the argument, Court of Appeals Judge Mary Schroeder slyly asked the government attorney, “Is there anything material that has happened” recently that might have caused the Justice Department to shift its views?
⁶⁵
The court and spectators were stunned when the government lawyer replied that the Justice Department was continuing to press the state secrets privilege argument. Ben Wizner, the lawyer representing Binyam Mohamed, remarked, “The only place in the world where these claims can’t be discussed is in this courtroom.” Judge Schroeder’s panel ruled in favor of the plaintiffs, ordering that the case be allowed to continue in light of the fact that most of the information involved, although embarrassing to the United States, was indeed public. But the entire Ninth Circuit Court of Appeals reversed that decision and the Supreme Court declined to review the case.
⁶⁶
The federal courts, then, had reached unanimity, refusing to hear every single victim of torture or extraordinary rendition who had sought their help.

In yet another example of procedural avoidance that has roiled the entire world of American civil litigation, the Supreme Court dismissed another complaint against John Ashcroft, brought by Muslim men arrested and detained in the fall of 2001.
⁶⁷
One of those men, Javaid Iqbal, was a Pakistani citizen who had been working as a cable installer in Hicksville, Long Island, when he was arrested in New York City in November 2001 for suspected immigration fraud and locked up in the Metropolitan Detention Center for six months. While there, he was brutalized by guards, denied medical treatment, and prevented from exercising his religion. His description of this abusive treatment is entirely credible: an Inspector General report on the fall 2001 detentions had documented the practices he described.
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But the Supreme Court came up with new rules about what kinds of facts lawyers had to put in their complaint before a lawsuit could begin and found that Iqbal’s claim did not satisfy this new standard.
⁶⁹

Of course, reliance on procedural excuses to keep civil rights victims out of court is not limited to national security cases. It is a part of what Erwin Chemerinsky, in a recent book, calls “the conservative assault on the Constitution.”
⁷⁰
This phenomenon threatens to diminish our constitutional rights by neutralizing the courts and allowing the political branches
to do whatever a majority of their constituents will approve. There is a very big difference between a democracy and a constitutional democracy. That is the difference on which the United States of America is founded. The Constitution binds us to fundamental principles and the courts are supposed to hold us to those commitments when we waver.

Is it unrealistic to expect that the courts will hold the line and protect our rights in an anxious era when the political branches claim that surrendering rights will promote our safety?
⁷¹
American history is full of examples of the Supreme Court failing to protect rights during times of war or crisis. As Norman Dorsen once said, “National security… has been a graveyard for civil liberties for much of our recent history.”
⁷²
Often heading the list of ignominious cases is
Korematsu v. United States
,
⁷³
where the Court upheld the government’s shameful treatment of West Coast Japanese-Americans during World War II.
⁷⁴
Korematsu
stands as a warning that judicial deference to national security claims must have its limits. The Court’s approval of exclusions of over a hundred thousand innocent people from their homes was based, as was later disclosed, on highly misleading evidence submitted by the government. A federal appellate court in California, later reexamining the evidence the government had presented to the courts (primarily a report by General DeWitt) and the considerable amount of contradictory evidence it had withheld, believed that the Supreme Court might well have reached a different conclusion had it known all the facts. Perhaps some representatives of the government were so confident that this program promoted national security that they did not want to take the risk that the Supreme Court would disagree. Or perhaps they wanted to cover up how thin or how embarrassing the full record actually was. The original version of DeWitt’s report, the California court noted over four decades after the fact, did not even “purport to rest on any military exigency, but instead declared that because of traits peculiar to citizens of Japanese ancestry it would be impossible to separate the loyal from the disloyal.”
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The Supreme Court’s deference allowed a disgraceful course of conduct to proceed and left as its legacy an opinion that, in hindsight, is an abject embarrassment. Legal historian Geoffrey Stone notes that while our history is full of instances where courts, including the Supreme Court, have made the mistake of underprotecting rights of minorities or all Americans, there is no demonstrable instance where American courts have undermined our national security by overprotecting rights.
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There have been instances of judicial courage as well as cowardice, even during wartime—like Robert Jackson’s eloquent paean to First Amendment
values in
West Virginia v. Barnette
,
⁷⁷
where the Court upheld the right of Jehovah’s Witnesses to decline to salute the American flag in 1943, right in the middle of World War II. The historic Guantánamo decisions also show how the Supreme Court can lead a national conversation about controversial constitutional and policy questions and spearhead much-needed change. A handful of district judges described in the previous chapters—Ann Aiken, William Alsup, Janet Hall, Victor Marrero, Anna Diggs Taylor, Vaughn Walker—and a few appellate panels—the Sixth Circuit in the secret deportation hearing case and the Second Circuit in reviewing the exclusion of Tariq Ramadan and the dismissal of the challenge to the FISA Amendments Act of 2008—have played a critical role in the national dialogue about our own rights. Marrero’s and Hall’s decisions set the stage for Congress to review gag orders; the Second Circuit’s pro–First Amendment decision forced Hillary Clinton’s hand in granting scholars like Ramadan visas. But when the courts remain silent or offer unearned approval of actions the political branches favor, we are deprived of a critical voice speaking for our fundamental values.
⁷⁸

To restore our rights and our balances, we have to tell the president, any president, that we are not willing to sacrifice our rights for placebos. Franklin Roosevelt is said to have told an individual who was giving him advice about something what he should do, “You have to make me do it.” Elected officials pay attention to what their constituents think. We have to demand that our representatives exercise independent oversight, with our participation, whether they want to or not. As other commentators have observed, Congress is actually our best hope for protecting our privacy and our other rights at this point.
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Restoring the courts to a full partnership position will be a long-term project. But the first step is to recognize that the role that both of those branches have been neglecting is essential.

Conclusion

What is clear is that this “war on terror” will never come to a public, decisive end. It is likely, however, to shape the way we think about and experience American democracy as well as its rights and privileges for generations to come.
—Anthony D. Romero (2007)
¹

As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.
—Justice William O. Douglas
²

Democracy isn’t what governments do, it’s what people do.
—Howard Zinn

P
ERHAPS THE MOST
important reason the destructive War on Terror campaign has been allowed to continue with so few modifications is the assumption that 9/11 was such a unique event that we are justified in making exceptions to our usual principles to meet the extraordinary threat of terrorism. But the threat of terrorism is neither new nor unique. The framers of our Constitution lived in a world of British sleeper cells and reactionaries threatening to reverse the results of the American Revolution itself.
³
It is impossible to read James Madison’s Federalist Papers account of his concerns for the security of New York without an uncanny sense of déjà vu: