Balkinization  

Wednesday, May 14, 2008

On being ashamed of one's country

Sandy Levinson

Every American should read a story in today's New York Times by Nina Bernstein aptly titled "Italian’s Detention Illustrates Dangers Foreign Visitors Face." Quite frankly, it is the kind of story one would expect to have a dateline of, say, Zimbabwe, China, the old Soviet Union, Myanmar, or Iran. Instead, it depicts our own fearful nation that has created a Kafka-esque "national security" bureaucracy that exemplifies every adage about power corrupting. The attitude of the US Government toward detainees seems all too exemplary of Roger Taney's unforgettable line about the juridical reality facing blacks in America in 1857: The had "no rights that whites were bound to respect." This is a fundamental rejection of what is best in classical liberalism, which is precisely that all individuals have rights that must be respected.

One can only wonder what Mr. Salerno must be telling his fellow Italians about the United States right now. Would it be shocking if he or his friends found himself/themselves saying (something like) "God damn America" for its willful and wanton cruelty to those it deems Others and, therefore, without those rights that we so pridefully accord fellow citizens (except, as with Jose Padilla, when we don't)?

I would like to think that there would be no real disagreement about the truly shameful injustice done Mr. Salerno. Do political conservatives really want to defend what in other contexts would be recognized as a fascist security apparatus?

[UPDATE: One should also read the book review in today's Times, "How Abu Ghraib Became the Anything-Goes Prison," by Michiko Kakutani reviewing Philip Gourevitch's and Errol Morris's new book Standard Operating Procedure. Especially chilling is the following:

In this volume Brig. Gen. Janis Karpinski, commander of the 800th Military Police Brigade at Abu Ghraib, is quoted as saying that General Miller told the soldiers at the prison: “The first thing I noticed is that you’re treating the prisoners too well. You have to take control, and they have to know that you’re in control. You have to treat the prisoners like dogs.”

This perfectly captures what can can only be termed the fascist mind-set. It might have begun at Guantanamo (or Bagram), but it has, alas, migrated far beyond Abu Ghraib, even if it would not be expressed so vividly as Gen. Miller put it.]




Comments:

“Now an innocent European, who has never broken any laws, committed any crimes, or overstayed his visa, is being held in a county jail,” Ms. Cooper wrote in an e-mail message to The New York Times last Wednesday, prompting a reporter’s inquiries.

The Times shows some math here. How sad it is that the reporter's initial interest was likely sparked by the fact that Salerno was European, and not some "understandably" detained brown person!

Also, how long before the logic works the other way? When will Americans be detained in a similar fashion for taking too many trips to Italy?

Do political conservatives really want to defend what in other contexts would be recognized as a fascist security apparatus?

Yes, Sandy, they do. That apparatus keeps the country safe. You can't make an omelet without cracking a few eggs. Maybe Salerno should have spend more time in his own country, then he wouldn't have had this problem. Keep outsiders out and insiders in. I'm sure there are a few more easy one sentence reasons.
 

Is there any legal avenue for Mr. Salerno to sue ICE for his treatment? It seems nothing less than court intervention will curb the abuses of the most abusive federal agency we have. Unfortunately, since so few citizens encounter ICE, we tend to be oblivious about how poorly they treat people.
 

Do political conservatives really want to defend what in other contexts would be recognized as a fascist security apparatus?

You're kidding, right?

Of course they do.

Fascism and Nazism were popular movements. A plurality of people were happy to know that torture and abuse were committed by their governments, provided of course that the victims were Somebody Else.
 

I think we're in danger of treating political conservatives as "the Other." There have, over the years, been lots of honorable limited-government conservatives who have cautioned against governmental excess, not to mentioned libertarians. I would be genuinely surprised if, say, Bob Barr, who is apparently running for the Libertarian nomination, would applaud what happened to Mr. Salerno.

Perhaps it is the Obamaite in me, but I'd like to think that we can engage across the political divide, however much we disagree about many very important things, and agree that there are some things for which the US stands, aspiratoinally, the violation of which makes all of us ashamed.
 

All in a day's work for ICE. After they detained Salerno they went to Iowa and victimized a bunch of school children. http://www.edweek.org/ew/articles/2008/05/21/38immig.h27.html?tmp=628328685

I'm not sure shameful is the right word...I prefer "outright villainy"
 

I think we're in danger of treating political conservatives as "the Other."

Fair enough. Talking in such general terms is indeed reductive and elides the great diversity of American conservatism. Correct my initial flippant answer to your question to:
"I think most would, actually, yes."

We can identify some people that fall outside the mold and support the fair treatment of non-citizens, but if we ranked them in terms of relative political power (however one might do that), I wonder how well they would stack up against other political conservatives.
 

I'm not ashamed of my country, much, but I've been ashamed of my government for a very long time indeed, which is among the reasons I'd rather it were given as little power as practical; These are not people I want running my life!
 

I think we're in danger of treating political conservatives as "the Other." There have, over the years, been lots of honorable limited-government conservatives who have cautioned against governmental excess, not to mentioned libertarians. I would be genuinely surprised if, say, Bob Barr, who is apparently running for the Libertarian nomination, would applaud what happened to Mr. Salerno.

Just as too many Christians have watched silently while the likes of James Dobson claimed to be the "true" Christians, so too many conservative have watched silently as Bush and his apologists claimed that label. That doesn't make it right to blame those who stand silent, but it does make it understandable.
 

I think we're in danger of treating political conservatives as "the Other."

Or, it suggests how few "conservatives" we have. There is nothing conservative about torture, indefinite detention, etc.

But I'll quit treating the GOP as the cousin of the fascist parties when it quits its fellow-travelling with the Bush-Cheney axis.

Else, we're in the satirical position of fearing to label our proto-fascists "the Other." As if contempt for human rights and the rule of law could be taken to legitimately distinguish someone.
 

See, I view this differently. To me this is an example of what happens when you give little people a little power without also making sure they have a little wisdom. In other words, it's a quintessential example of bureaucracy in action.

Is that a conservative point of view?
 

See, I view this differently. To me this is an example of what happens when you give little people a little power without also making sure they have a little wisdom. In other words, it's a quintessential example of bureaucracy in action.

Is that a conservative point of view?
 

it's a quintessential example of bureaucracy in action

It's obviously not.

Almost every democratic country manages to handle ordinary tourist visits without resorting to falsified records, secret detention, and denial of due process. No other democracy has a network of torture prisons to which hundreds of people, very often completely innocent, are "rendered" without legal process, in secrecy, with no hope of release or self-defense. Every country has a "bureaucracy" to handle its administrative affairs, but only evil and anti-democratic ones engage in torture, secret detention, and denial of due process.

It has nothing to do with bureaucracy. The problem is moral perversion at the highest levels of policy-making.
 

I agree with boldface. This strikes me as typical bureaucratic incompetence/abuse. It follows from the fact that CBP agents have the discretion to deny entry and to detain asylum-seekers. If the Italian guy didn't ask for asylum and was detained maliciously, then the agents should be fired or (since they have a union) at least disciplined.

Maybe this kind of thing couldn't happen in Europe, but I suspect otherwise.
 

Bureaucratic abuse consists of hassling the guy at immigration: searching his luggage another time, questioning him offensively, even strip searching him.

Throwing him in an obscure jail and denying him any rights at all goes well beyond bureaucratic abuse.
 

I don't get why this case is more shocking than using a SWAT team to capture and deport Elian Gonzalez, or intercepting Haitian and Cuban refugees at sea to avoid the prohibitions on refoulement. Is it just because the victim is European?

Also, I don't get why, when we have a Democratic president, you can't love your country and hate your government, but it's fine when we have a Republican president.
 

Sandy, did you miss the 4 part in the Washington Post? Not that you need to be more sickened at this point.
 

I don't get why this case is more shocking than using a SWAT team to capture and deport Elian Gonzalez, or intercepting Haitian and Cuban refugees at sea to avoid the prohibitions on refoulement.

Then presumably you agree that this incident was wrong. And you have no hesitancy saying so.
 

Definitely this incident was wrong (assuming it has been reported with reasonable accuracy) and I have no hesitancy in saying so. I hate those jackbooted thugs (ok, overzealous officials) at Immigration and Customs Enforcement. But if I were ashamed of my country because of overzealous law enforcement personnel, my head would never lift from the ground.

BTW, what about the way the Duke University treated the men's lacross team? I think that was wrong too. I hate those authoritarian, power-mad petty tyrants in academia too. It doesn't make me ashamed of Yale, however, just disdainful of its faculty and administration.
 

Prof. Levinson:

Perhaps it is the Obamaite in me, but I'd like to think that we can engage across the political divide, however much we disagree about many very important things, and agree that there are some things for which the US stands, aspiratoinally, the violation of which makes all of us ashamed.

Well, 72% of us at least. There are the 28% that have a different idea. Glenn Greenwald dissects the phenomenon here.

Then there's the related business of torture and degrading treatment. Contributor DDay over at Hullabaloo sums that up here.

And the "kangaroo trials" by the erstwhile Beacon Of Freedom And Patentee Of Human Rights If Not Democracy, Constitutions, And Even Civilisation Itself, the Yoo Ess of Aye. I comment on that in Prof. Tamanaha's post below.

But you can be sure that such an evidentiary trail will be ignored by those 28% that have a 'need' to ignore it (see Prof. Tamanaha's post for one such example).

Cheers,
 

Professor Levinson:

Since 9/11, the old practice of citing and releasing illegal aliens ended - and necessarily so. Aliens not eligible to enter the country are detained and deported. There is nothing "fascist" about this practice. They are here illegally.

When an illegal alien asks for asylum, he is caught in a catch 22. He cannot be deported on the next flight and cannot be released until the asylum process is decided out or concern for his safety.

In this one rare case out of tens of thousands, either immigration made a mistake / lied about the Italian's request for asylum or they acted properly. If they lied, although I cannot think what they would gain by doing so, then the agents should be prosecuted for false imprisonment. If not, tough luck for the Italian asylum seeker.

If putting asylum seekers in a local jail upsets you, then advocate funding a cushier detention facility. However, we certainly cannot afford to allow illegal aliens to roam at will in the country.
 

Since 9/11,

Baghdad, that wasn't a gun in his pocket, he was here to see his girlfriend.
 

However, we certainly cannot afford to allow illegal aliens to roam at will in the country.

Oh, yes, indeed, the horror. Those insidious grapes are a commie plot. Don't even mention avocados. And clean homes and nice lawns too. Ask the Mittster....

Cheers,
 

arne:

Tell it to the 3500 who were murdered on 9/11.
 

Tell it to the 3500 who were murdered on 9/11.

That's a strange non-sequitur, Bart.

Maybe you ought to read Lawrence Wright's 'The Looming Tower.' Since our intelligence bureaucracies had knowledge of the presence in the US of some of the conspirators and the failure had virtually zero to do with immigration enforcement and everything to do with bureaucratic jealousy and dysfunction between FBI and CIA.
 

Dick Wolf's "Law & Order" had an episode shortly after Patriot Act I was enacted reflecting such a detention that made a powerful impact. But people forget very quickly, as things like this do not impact them directly.

We all have had to make our own personal sacrifices following 9/1l, Afghanistan and Iraq which continue to the present and for years to come. As for me, since I never golfed, it would not be a real sacrifice for me as it was for George W to give up golf. But I wonder how many "Mulligans" should George W be entitled to for being so off coarse (sick!) these past 7 years to permit historians to reflect favorably upon his Presidency?
 

how many "Mulligans" ... to permit historians to reflect favorably upon his Presidency?

It's too late for mulligans. Bush will be remembered as Cheney's cuckold.
 

mattski said...

Tell it to the 3500 who were murdered on 9/11.

That's a strange non-sequitur, Bart...Since our intelligence bureaucracies had knowledge of the presence in the US of some of the conspirators and the failure had virtually zero to do with immigration enforcement and everything to do with bureaucratic jealousy and dysfunction between FBI and CIA.


The fact that FBI and CIA (not to mention the folks at DIA who shut down Operation Able Danger) failed to do their jobs does not excuse our immigration bureaucracy from failing to deport the 9/11 terrorists who were here on long expired visas.
 

Maybe the American law professoriate, instead of raving about how awful George Bush and America are, should put their political energy behind proposals for better immigration detention facilities and swifter hearings for detainees. However, that kind of practical measure doesn't usually get the juices flowing in academia.
 

The "American law professoriate" at this Blog are putting "their political energy behind proposals for" due process, such as "better immigration detention facilities and swifter hearings for detainees" which the Bush Administration does not want to have accorded them. Of course xenophobic neo-cons would object to the expense for people who are not worthy. When they come for the neo-cons, who will speak up for them? Probably this same "raving American law professoriate."
 

Shaq: They are? Give me a cite. I don't recall a single post on this site calling for more immigration ALJs and better detention facilities, but maybe I missed it.
 

Maybe the American law professoriate, instead of raving about how awful George Bush and America are, should put their political energy behind proposals for better immigration detention facilities and swifter hearings for detainees. However, that kind of practical measure doesn't usually get the juices flowing in academia.

Tell it to Margaret Taylor. Practical concerns have been demonstrated (and practical alternatives have been offered) by legal academia for years.
 

"Bart" DePalma:

[to me]: Tell it to the 3500 who were murdered on 9/11.

What that has to do with illegal aliens, I don't know. Clue fer ya, "Bart", Atta and others were here legally....

"3500"

On a different note, looks like inflation is heating up. But what the hey, we can afford over four thousand in some Iraqi quagmire, according to you. Sounds like you hold life cheaper, my friend. Will take you a couple more dead soldiers to buy yourself a clean pair of panties.

Cheers,nfu
 

The many posts on this Blog by the "American law professoriate" that have been highly critical of George W's Administration with respect to the subjects of torture, terrorists detained at Guantanamo and elsewhere, immigration detention, the Patriot Acts I and II, communications spying, etc (connected to 9/11, Afghanistan, Iraq) have challenged the lack of due and fair process offered without spelling out specific remedies for, in Sean's cite challenge, "more immigration ALJs and better detention facilities." The criticism has not been subtle nor nuanced. Perhaps some reading between the lines is required for those in George W's camp of neo-cons who think he can do no wrong in his black and white world. It is not the role of the "American law professoriate" at this Blog or elsewhere to spell out specific proposals (such as for purposes of legislation) when they critique George W's Administration. Nor is it my role to offer cites of specific proposals such as Sean seems to invite. (It was Sen. Gene McCarthy back in 1968 in his brief presidential run when questioned about what solutions he was offering regarding his criticism of LBJ's Administration responded: You don't have to be a shoemaker to know the shoe hurts.") So perhaps Sean needs to read between the lines of the posts of the "American law professoriate" as well as of my Boy Scout salute to him as he contemplates what might constitute due and fair process.
 

Here's a rundown on the legal status of the hijackers.

FWIW, "Bart"'s mewling about "illegal aliens" ignores the fact that anyone intent on doing damage will find other ways should some bureaucratic, over-general, and non-specific obstacle be in their way. Though, truth be told, I suspect that "Bart"'s 'concern' about "illegal aliens" has more to do with his other concerns (like his white race being out-bred) than it has to do with real concerns about Terra. Yes, he's frightened. But the object that frightens him is those darkies flooding our country. "The Enemy Within", yaknow....

Cheers,
 

Hello Bart De Palma:

Perhaps you missed it in the NYT article. During Mr. Salerno's grilling by the CBP at Dulles, his waiting American girlfriend - Ms. Cooper - was told by a CBP agent something to the effect "that maybe he [Salerno] should try spending more time in his own country." If in fact she was told that by a CBP, that statement completely undercuts the CBP's position that Salerno had requested asylum, a claim the agency ultimately withdrew as a "mistake."

It also seems that the CBP agents came to "understand" that Salerno was seeking asylum AFTER he asked to speak with the Italian consulate. Why would Salerno simultaneously ask to speak with his consulate and request asylum in the United States? Seems to me that there are too many inconsistencies in the CBP's version of events. I do hope that Mr. Salerno secures good tort counsel.
 

pms_chicago:

The full sentence, with which most people are familiar, is "You can't make an omelet without breaking a few eggs."

This isn't actually a proverb, however. It's a justification used by Vladimir Lenin regarding the killing of thousands of Russian citizens during his push to produce a better, more wonderful Communist state. See, e.g.: http://everything2.com/node/788327
 

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