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Guantánamo: Exception or Rule?

All-American justice for a child soldier at Obama’s Gitmo.

| Thu Nov. 4, 2010 3:39 PM EDT

Legal Black Holes, At Home and Abroad

Gazing into Gitmo's black hole can also easily provoke disturbing reflections on the rule of law in wartime America. As another lawyer remarked 2,000 years ago while his republic was degenerating into empire, "Inter armas silent leges" (in time of war, the laws fall silent).

Keep in mind that the Global War on Terror—a name the Obama administration has demurely dropped without dropping the war that went with it—is by no means the only war deforming our justice system. For the past three decades, the War on Crime and the War on Drugs have been in full fury, becoming ever less metaphorical as budgets for police and prisons skyrocket, and then skyrocket some more. These domestic crackdowns have come with much martial rhetoric and political manipulation of fear and anger, clearing a wide path for the excesses of that Global War on Terror. By overburdening the criminal courts and prison system to a hitherto unimaginable degree, these "wars" also created legal black holes where the rule of law is notional at best.

Take the Prison Litigation Reform Act of 1995, which made it nearly impossible for inmates to sue prison authorities, and has put thousands of Americans beyond the reach of any kind of juridical authority. According to Bryan Stevenson, a peerless capital-defense litigator and executive director of the Equal Justice Initiative in Montgomery, Alabama:

"US prison officials have obtained greater and greater discretion to send someone to solitary confinement for years; to force people into their cells naked, without meals; to inflict punitive measures without any possibility of outside intervention. It's often a closed system whose managers have all the authority, especially at our supermax facilities. They function in many ways like Guantánamo."

Gitmo and Bagram were well within our capabilities before 9/11. Yes, it's true that Bush administration officials and pundits told us with excitement about how, in our counterattack on al-Qaeda, "the gloves were coming off." For a great many Americans already in US prisons, however, those gloves had never gone on to begin with. This raises some vexing questions about how we budget our indignation. It is not at all clear why violent interrogations, abuse, and torture should be more scandalous when they happen overseas than in Chicago.

What explains this collective Jellybyism? Is it because so many of our domestic inmates, especially in the regions where national opinion is produced, are African American and Latino, whereas most of our professional social reformers in the nonprofit sector are white and Asian? Is it because most of our elite public-interest lawyers and white-shoe pro bono advocates come out of a top half-dozen law schools where they most likely got a nice taste of well-tended federal courts, but little if any exposure to our overburdened state criminal courts? Is it just too depressing to think about our crumbling, overstrained criminal justice system in Guantánamo-like terms? Does compassion fatigue for those atrocities closest at hand always set in first, and hardest? Whatever the reasons, the gaping legal black holes in our domestic justice and penal system have acquired the seamless invisibility of an open secret.

It is no coincidence that most of the American intellectuals who have pointed out these domestic precursors to the Global War on Terror—journalists like Margaret Kimberley and Bob Herbert, and law professor James Forman Jr.—are African American. Black Americans, whose overall incarceration rate today is probably higher than that of Soviet citizens at the peak of the gulag, have had ample reasons over the centuries, and now as much as ever, to doubt the fundamental fairness of American justice. When advocates compare the military tribunals unfavorably to "the Cadillac version of justice" that US citizens supposedly get (which was how one Gitmo defense attorney described America's domestic courts), it is simply baffling to those aware of how our system actually works.

In fact, the ho-hum familiarity of much of the War on Terror's nastiness may help explain why so many Americans view what's gone on at Gitmo with a shrug, and often respond to the liberal shock and horror with exasperation. This has been going on right here for decades, where have you been?

Prosecuting a 15-year-old for "murder" with the help of a little torture and some threats of rape may not be the kind of thing we want to show German journalists. They'll just get upset. They lack the context. But we Americans really have no right to claim that we're shocked, shocked. We got used to this kind of thing a long time ago. The prosecution of former child soldier Omar Khadr has been nothing, in other words, if not all-American.

Chase Madar is a lawyer in New York. He reviews and reports for the London Review of Books, Le Monde Diplomatique, the American Conservative Magazine and CounterPunch. A Timothy MacBain TomDispatch video interview with Madar on why Guantanamo has not betrayed American "values" can be seen by clicking here or downloaded to your iPod, here.

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