For broadcast on WAMC Northeast Report, May 19, 2009:
Many of us believe this is a free country because of our Bill of Rights. Tyrants and dictators cannot do what they do to so many unfortunate people of this world. The Constitution and the courts would stop them, and keep us free. Not as long as this Court sits.
There is controversy over whether the Obama Administration should prosecute those who authorized torture and brutality. But plaintiffs with their own private attorneys have been going to Court trying to find justice, appealing to those people who sit on the Supreme Court and whose very title is “Justice.”
Javaid Iqbal, is Pakistani, a Muslim, who has never been accused or charged with any terrorist activities although he pled guilty to an immigration charge and was returned to Pakistan. As Iqbal’s case went to the Supreme Court, the question was whether it should be dismissed on the pleadings without discovery or trial.
Here is some of what Iqbal told the courts. On January 8, 2002 he was then taken to a room where 15 officers were waiting for him. Several picked Iqbal up, threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room. The officers screamed at Iqbal, that he was a “terrorist” and a “Muslim.” Iqbal was then taken – shackled and chained around his arms, legs and waist, bleeding from his mouth and nose – to a maximum security prison.
As the District Court summarized the complaint, Iqbal and a co-plaintiff were “(1) kept in solitary… (2) prohibited from leaving their cells … more than one hour each day with few exceptions; (3) verbally and physically abused; (4) routinely subjected to humiliating and unnecessary strip and body-cavity searches, (5) denied access to basic medical care; (6) denied access to legal counsel; (7) denied adequate exercise and nutrition; (8) housed in small cells where the lights were left on almost 24 hours a day; (9) deliberately subjected to air conditioning during the winter months and heat during the summer months; (10) deprived of adequate bedding or personal hygiene items; and (11) … deprived of adequate food, … [so that] Iqbal lost over 40 pounds (and suffers from persistent digestive problems).”
None of this, we now know, has been an aberration. Across the world people have been mistreated in the name of the United States out of the very playbooks of the regimes we most despise. And as we have learned, these were not merely isolated instances of officers out of control. Instead this attack on the system of justice has been organized at the top.
All this can be true, said the Supreme Court. But there is an alphabet of immunities to protect the perpetrators. The Court said Iqbal’s allegations against former Attorney General Ashcroft and former FBI Director Mueller weren’t “plausible”, so Iqbal could be denied a chance to prove it. Those in charge could not be sued for the behavior of those under them. And they could not be sued for discrimination for setting up a program which treated all Muslims in custody as if they had already been convicted of heinous crimes – which Iqbal and many others like him never were or would be. Not “plausible” despite years of painful revelations.
So does anything differentiate the majority on this Court from the kept courts of foreign kleptocracies and dictators, putting party and connections above law and justice, fostering a culture of impunity by those with power or connections? There were no immunities available to protect President Clinton when Paula Jones’ lawyers went on a fishing expedition to see if they could trap Clinton into a lie, any lie, to protect himself from their inquiries into his private faults. But immunities abound to protect those who violate the most basic liberties. According to these officeholders there is nothing wrong with discrimination so long as it is practiced by the right people. Bush v. Gore was not an aberration.
The protections we have learned to believe in are mere paper promises when the Court feels free to pick and choose who is entitled. We had better get rid of the notion that the Constitution and the Bill of Rights protects our democracy. Not as long as this Court sits.