Congress, Kansas governor grandstanding against detainees

            Remember back in January when President Obama signed an executive order tasking his Attorney General and Secretary of Defense with finding a way to close the prison at Guantanamo Bay within a year?  And how Democrats in Congress applauded him for respecting the rule of law and restoring America’s reputation among civilized nations?  Well, that was until they realized that if Gitmo were to be closed, then the detainees there have to go…somewhere. 

         Other countries won’t take any unless we absorb some, and Congress has blocked Obama’s plan to try and/or release or confine prisoners in the U.S. until he has reassured them that Americans won’t have to worry about dangerous terrorists becoming crossing guards or working at the neighborhood grocery store, or whatever it is that Republicans are trying to spook the country into thinking will happen to these men. (Democrats, having been the party opposed to the Iraq war, torture, and indefinite/unlawful detentions, cannot afford to be accused of letting terrorists wander the streets, and consequently are siding with the Republicans on this issue.)

         Of course, all this is silly—there are countless rapists, serial killers, lunatics, and madmen locked up for life in prisons all over this country (one out of every hundred Americans is locked up); the administration was not planning on flying enemies of the U.S. here, unchaining them, giving them five dollars and some candy, and saying “have a nice life, Ahmed.”  These people were intended to be tried, convicted, and locked up for a long time. 

        A prime piece of real estate to lock up the “worst of the worst” would be the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas, “the only maximum-security prison within the Department of Defense.”  From the military’s website:

“The special-housing unit is reserved for inmates who could be locked up 23 hours a day. Food is slid into cells through narrow slots, and a small window at the foot of each door lets the guards, known within the USDB as correctional specialists, chain inmates’ ankles before they’re escorted out for showers or fresh air.

Every time one of these inmates moves, two or three staff members are with them. The correctional specialists actually have more contact with maximum-security inmates than those who pose fewer risks.”

            Sounds safe enough, right?  Hell no, the governor of Kansas, Mark Parkinson, told NPR.  In an interview, he chased his tail in justifying why neither the military prison nor the maximum-security federal prison in his state was fit to house prisoners.

Q: Should some Guantanamo detainees be moved to Ft. Leavenworth?

A: We don’t believe so….if these prisoners are moved, they need to be sent to highly-secure prisons. The military prison at Ft. Leavenworth is not a highly-secure prison….

Q: Not highly secure?  But it’s a maximum-security facility, the only one within the Pentagon.

A: Well, it may meet some line-item definition of being a maximum-security prison, but in reality it is a dormitory-style facility…it’s a very open facility….

There’s some confusion between the federal U.S.  penitentiary in Leavenworth which is a highly-secure facility and the military facility at Ft. Leavenworth, which is not nearly secure enough to handle the Guantanamo Bay prisoners….

Q: What about putting them at the [federal] facility that you mentioned, which you seem to be saying is more secure?

A: Well, I think that would be unprecedented. Our federal penitentiaries are set up for U.S. prisoners and I think that the appropriate step to take would be to keep these within the confines of a military prison, and the prison that we have here in Kansas is simply not the right one.

Q: Governor, if not there, where do you think they should go? Whose back yard do you think they should land in?

A: Well, I certainly don’t have an inventory of what the highly-secure military prisons are in the United States but I would agree with the criteria that the president has set out, which is that there needs to be a very highly-secure area.  If that prison doesn’t exist, it would need to be built or Guantanamo Bay would simply need to be kept open.

            There you go.  The solution to closing Guantanamo is to move the prisoners to a maximum-security prison; but not a federal prison, because they’re not U.S. citizens.  And not to the only maximum-security military prison, because it’s not secure enough.  So, we either need to keep Guantanamo open, or build another Guantanamo in the United States.  But where should it be built?

            And the dance begins anew.

Obama’s empathetic judge

         While a president may have very little direct influence on policymaking, he is given substantial leeway to choose the administrators, advisors, regulators, and Cabinet members whose job it is to work with Congress to implement his agenda.  These people play a big role in guiding the country to the left or to the right for a term or two.  But the long-run impact of a president occurs not through executive agencies, but via the courts, where the president’s judicial philosophy is carried out for years or decades after he leaves office.

            Whereas Bush surrounded himself with loyalists who were more concerned with ideology than pragmatism, Obama has proven to be the opposite.  Many of his Cabinet members are heavy hitters and critical thinkers who don’t have longstanding ties to Obama.  As the administration gears up to nominate someone to replace retiring Supreme Court Justice David Souter, the speculation is that this person will be somehow different from all other members—either a governor, a Latina, a black woman, an Asian, etc. who is more than a reliable partisan.

         Above all, Obama stated that he wants his nominee to be “someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people’s lives.”   He hopes that his pick will see that the “quality of empathy, of understanding and identifying with people’s hopes and struggles [is] an essential ingredient for arriving at just decisions and outcomes.”

            Already, though, that harmless word “empathy” is throwing some conservatives into a frenzy.  According to them, having empathy is code for being an activist judge, or for being pro-choice, or for siding with the consumer over big business.  Judges don’t have empathy; empathy clouds judgment.  A judge’s business is to read what is in the Constitution, apply it to the case, and decide who is right—not who deserves favorable treatment.

            The problem with this argument is that the Constitution is not so clear—and was never intended to be clear—on a range of issues that did not exist in 1789.  And to that end, being book smart regarding the thousands of relevant statutes and precedents may still not be enough to answer the challenging questions of tomorrow.  Throughout the country’s history, judges have been senators, representatives, soldiers, bureaucrats, and even a president.  William O. Douglas was an outdoorsman who famously helped save the C&O Trail for hikers/bikers while he sat on the bench.

              The point is that being a judge does not necessarily require a two-dimensional personality of encyclopedic case law knowledge.  A judge who is familiar with political fault lines and the roots of social disorder may bring a unique perspective.  Back in the early days, justices were appointed from different regions of the country in the name of “diversity”, since communication and differential economic growth had not yet homogenized the nation.  A judge must be able to realize that both parties in a case can be right in principle, but that good law must level the playing field for the greatest number of people.  And that is how schools become integrated, poor defendants gain access to lawyers, and children are protected from hearing profanity on the radio.

            Of course, all decisions involve trade-offs: between freer commerce and protective regulation; between liberty and safety; between social custom and ultimate equality.  And the fear that Obama’s judge will be an “activist” is a mistake conservatives often make in referring to a liberal judge—the right wing of the Supreme Court overturned Washington, D.C.’s gun control laws last summer in a moment of activism.  It is unfortunate the idea somehow bothers conservatives that rendering social justice makes a mockery of real justice.

            Hopefully, Obama’s nominee will be able to prove able to blend the Constitution, law, culture, and history into an understanding of what her/his ruling will mean for individuals, groups, and principles.

The Democratic Congress’s hypocrisy

            The downside to campaigning on idealism—promises of removing corruption, bringing transparency to government operations, respecting the rule of law, and ending wasteful spending—is that when those ideals inevitably prove unrealistic, politicians will look like hypocrites for breaking their promises.

            Case in point: the possibility of ending military tribunals at Guantanamo Bay and instead holding the trials in federal courtrooms within the United States is causing politicians to protest against terrorism suspects being held in their state or district.  The Democrats on the House Appropriations Committee suspended funding to transfer prisoners to the homeland, and the proposed Keep Terrorists Out of America Act (apparently all of the poor, tortured prisoners are now definitively and automatically terrorists) sets a high bar for allowing detainees to enter the U.S.

            Well, gee, Democrats, what were you expecting when Obama vowed to close Guantanamo?  Didn’t many Democrats argue that they doubted these detainees were the “worst of the worst” in rallying against torture practices and indefinite detentions?  And how can we expect our European allies to receive prisoners who are tried and acquitted when we won’t even let the trials proceed?  For goodness sake, the town of Hardin, Montana (population 3,300) offered to accept detainees, but the state’s Democratic senators said “Not In My Backyard.”

            I understand that it would spook and inconvenience constituents to have terrorism trials  held in cities and towns where extensive security precautions would have to be made and the media would have to be accommodated.  But the government and the voters have already stated their desire to see Guantanamo closed, and the only place to hold trials would be in the U.S.  If it must be done by military court as authorized by Congress, then so be it; but short of reopening Alcatraz to house these men, some states will have to try the accused for crimes against U.S. soldiers or the U.S. homeland, then house them if convicted in the U.S.

       As a second example of congressional backtracking, President Obama last week revealed 121 programs that he planned to cut from the federal budget to save $17 billion.  One would think that a line-by-line elimination of wasteful or ineffective programs would be welcome when many—if not all—lawmakers are uneasy over the large federal deficit.  However, it is certain that most of those cuts will be restored by Congress because representatives want to protect their own state and district interests.

       At one level, this is reasonable, both because lawmakers want to survive the next election cycle by preventing harm to their constituents and also because they are able to meet with people who are affected by these programs and gauge effectiveness on their own.  On the other hand, budget deficits can never be reduced if everything is deemed necessary and effective.  All of the campaign rhetoric about reigning in the wasteful spending of the Bush years will be for naught if representatives do not agree that each state and each district can find funding items that simply give too little bang for too much buck.

       Alas, it is much harder to follow through on promises if everyone agrees that it’s someone else’s responsibility to make sacrifices.  Last year’s vows to uphold the Constitution and halt the spiraling deficits will give way to next year’s reminders of having kept U.S. citizens safe from terrorists and preventing pet projects from having been eliminated.  Ideals are hard to uphold because a sensible plan on paper will become more complex and personalized when the realization sets in that actual people are impacted by policy decisions.  Congress must work with the president to determine a way in which any negative impact is shared evenly so that their political future will be secure and their campaign rhetoric will not be invalidated.