I have been trying to wrap my head, or at least my vocabulary, around why I am deeply perturbed by Dahlia Lithwick’s exposure of “The Supreme Court’s collective yawn at the case of a U.S. citizen’s detention and mistreatment after Sept. 11“:
… [T]here is very little ruffled fur or uppity dander at this morning’s argument in a case about an American citizen held under brutally abusive conditions for over two weeks as a material witness—even though he was willing to testify and was never charged with anything. The party line here regarding Sept. 11 seems to be this: Mistakes were made. Knit. Purl.
Abdullah al-Kidd was born Lavoni Kidd, a U.S. citizen and former football star at the University of Idaho. He converted to Islam after college. In 2003, he was detained under the federal material witness statute , then spent 16 days in federal detention, sometimes naked and sometimes shackled, often freezing and in cells lit for 24 hours a day. Nobody suspected him of wrongdoing. He was simply an acquaintance of Sami Omar al-Hussayen, who was being investigated for ties to terrorism. Even though al-Kidd had cooperated with the FBI previously, the agency sought a material witness warrant based on the (inaccurate) claim that he was about to flee to Saudi Arabia with a first-class one way-ticket worth $5,000. (In fact, he had a round-trip coach-class ticket that he paid about $1,700 for. He was going to study for a doctorate in religion.) Although the authorities claimed they needed to detain al-Kidd so he would testify against al-Hussayen, he was never called to testify, and al-Hussayen was not convicted…
Now please go read Lithwick’s whole article, wherein she describes the Justices’ hearing with great clarity and many further links, because IANAL and your understanding should not be based on my possible misinterpretations and/or influency. Lithwick concludes:
Nobody is here to suggest that these questions of responsibility for the abusive detentions that happened after Sept. 11 are easy. The problem is that, because nobody is ever held responsible for anything, they have been made to look easy. “Hey, we were just doing our jobs,” and “Hey, we were all just freaking out” have become acceptable answers. And if oral argument today is proof of anything, it’s that when it comes to the civil liberties fallout post-Sept. 11, nobody can ever muster the energy to ask the questions.
There’s no judicial language for “Well, our bad?” Not even a bland Reaganesque “Mistakes were made”? Just… ‘Stuff happens’, I guess?
Best I can express it, part of our all-American foundational myth is that, in legal terms, a hundred and forty years ago “there was no such thing as ‘child abuse‘” (because children were parental property, to be used or misused like any other property). Forty years ago, under the law, “there was no such thing as ‘domestic violence’“, because women were the property of their husbands. But now, if I’m understanding Lithwick correctly, the Supreme Court is deciding to bend the arc of justice in the opposite direction: Inconvenient plantiffs don’t get to protest what objective observers would call torture because if the government felt the need to impose these conditions, all further discussion is off the table.
It’s Orwellian in the strictest sense — once the FBI, or the NSA, or whichever arm of the government decides in its majesty that a citizen’s purported rights have become a burden to the State, then the very terms to describe those rights are… disappeared.
And to think we used to mock the Master: