Talk It Out

Sacrificing the rule of law at the altar of fear

        Inscriptions on the Statue of Liberty

Americans are good at coming up with inspiring slogans. Slogans are not sufficient however for a country to truly remain the "land of the free". They are not an adequate antidote to the fear-driven knee-jerk reactions threatening to compromise essential tenets of rule of law and freedom, not only in America, but also in other democracies.

A few days ago a prominent US judge - Richard Posner, gave a speech to a conference of Australian lawyers in Chicago, in which he reportedly advocated secret trials for terror suspects, increased surveillance and crackdown on US and Canadian Muslims. More frightening still was Posner's suggestion that anti-terrorism efforts should not be "hog-tied" by the Constitution and that US "over invested" in the "traditional concepts of criminal justice." 

I have not been able to find a full copy of Posner's speech, but his speech is said to have shocked the attending Australian lawyers. Posner's position is indeed a worrying reminder of how dangerous a motivator fear is. What we have is a US judge essentially suggesting tearing up the constitution and discarding the principles that form the foundation of the American justice system and the rule of law because he (along with many others) is afraid. We are not talking about someone who is a fool or a right wing extremist. Posner is a highly regarded jurist. Whatever one may think of his economic theory of law (it doesn't appeal to me personally, but each to his own), there is no point denying his capabilities.

That a jurist of his caliber would suggest abandoning the carefully crafted protections and principles that we treasure as cornerstones of our legal (and political) systems, because "the US temper and culture could not sustain repeated terrorist attacks" points to the fragility of our liberties. The country that proudly proclaims itself to be "the land of the free" is willing to destroy its freedoms because of fear. No terrorist action is needed to destroy the American "way of life" - they appear to be content to do so themselves. 

It is not my contention that the fear is unjustified or that the threat of terrorism ought to be ignored. But if we (Western democracies) are to destroy the cherished liberties and principles that make "our way of life" what it is - then what is it that we are fighting for? Do we really want to defend ourselves by destroying who we are? Do we want to abandon the protections and liberties that were achieved through decades or centuries of struggle and sometimes bloodshed? If the answer is yes, then the "war on terror" has already been lost.

One other comment that Posner reportedly made is that the measures he proposed would not "endanger liberty and undermine the political system" because a "very aggressive media" and government whistle-blowers made it impossible for governments to conceal what they did. It is quite extraordinary that a judge would propose media as a substitute for the protections enshrined in the legal system. Leaving essential liberties to the mercies of what journalists wish (or dare) to report and to the possibility that a government employee would be sufficiently disgruntled and courageous to blow the whistle, borders on absurd. It is not to say that the media does not play an important role in government transparency, but it is not an antidote to abuse, as is evidenced by the documented atrocities in the "war on terror". Further, revealing abuses, possibly years afterwards, is not the same as preventing them from happening in the first place.

America's rush to destroy its founding principles is very disturbing. If it continues on that road, the inscriptions on the base of the Statue of Liberty will stand as no more than sad reminders of proud and cherished values willingly sacrificed at the altar of fear. 

July 2nd, 2007 Posted by Unsilenced | World politics, Law, Human rights, Terrorism and war on terror, United States | no comments