A Distant Dissident
Supreme Court justice Ruth Ginsberg has nailed her colours to the mast with this speech on rendition, torture, and indefinite detention – though it’s a great pity she had to go to South Africa to do it. Early reports concentrate on the death threats aspect of the speech but there are some very interesting passages on the constitutionality of current executive actions. . She refers approvingly to Lord Woolf’s House of Lords opinion on the Belmarsh detainees and reiterates the legitimate influence of international standards on the development of US law, decrying those in Congress who push strict constructionism.
It’s well worth reading the whole thing as it’s the way she builds her case cumulatively, example by example, that is so damning of the current situation. I don’t doubt that had she given this speech in the US her life really would have been in danger.
[…] Later in December, recognizing the nation’s obligations under the Convention against Torture, the U.S. Congress banned cruel, inhuman, and degrading treatment of detainees in U.S. custody. The legislation, however, stops short of explicitly banning evidence elicited by torture from consideration by a military tribunal charged with determining whether a detainee is an enemy combatant.
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers’ intent “to create a more perfect Union,” I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.
A key 1958 plurality opinion, Trop v. Dulles, makes just that point. At issue in that case, whether stripping a wartime deserter of citizenship violated the Eighth Amendment’s ban on “cruel and unusual punishments.” “The basic concept underlying the . . . Amendment,” the opinion observed, “is nothing less than the dignity of man.” Therefore the Constitution’s text “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In that regard, the plurality reported: “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” (The primacy of human dignity notably is not left to inference in South Africa’s Constitution, for Section 10 prescribes: “Everyone has inherent dignity and the right to have their dignity respected and protected.”)
Turning from frozen-in-time interpretation, I will take up another shortfall or insularity in current U.S. jurisprudence, at least as I see it. The Bill of Rights, few would disagree, is the hallmark and pride of the United States. One might therefore assume that it guides and controls U.S. officialdom wherever in the world they carry the flag of the United States or their credentials. But that is not the currently prevailing view. For example, absent an express ban by treaty, a U.S. officer may abduct a foreigner and forcibly transport him to the United States to stand trial. The U.S. Supreme Court so held, 6-to-3, in 1992. Just a year earlier, South Africa’s Supreme Court of Appeal had ruled the other way. It determined that under South Africa’s common law, a trial court has no jurisdiction to hear a case against a defendant when the State had acted lawlessly in apprehending him by participating in an abduction across international borders. […]
Justice Ginsberg is very clear that the US cannnot continue to isolate or exempt itself from global legal norms in a an increasingly global culture. She also warns of the danger from one-party control of both Houses of Congress and the Executive.
You’dve though that when two of the highest judges in the land warn against it, in the space of two weeks, then that danger is real and ordinary Americans would sit up and take notice. But I have a horrible feeling that they won’t – like the global climate, the US may have already gone past its tipping point into fascism.
I hope that’s not so, but when a supreme court justice has to make a speech like this overseas, I fear it is.
