The Ek’s Files

… to say the least.

A couple of weeks ago, the Supreme Court ruled that those “unlawful combatants” confined at Gitmo are not completely without constitutional rights. At about the same time, Physicians for Human Rights released a report contending that physical examinations of former Abu Ghraib and Gitmo detainees showed that those detainees had suffered extensive physical and mental torture and abuse. We already knew about waterboarding, of course. But now we hear reports of electric shock, sodomization, humiliation, sleep deprivation, and other physical and mental abuses. The Supreme Court ruling, and the reports of torture and abuses, leave me somewhat conflicted. My sympathy for those intent on destroying the USA is severely limited. Yet, the humanity and compassion expressed in our constitution through such concepts as innocence until proven guilty, the right to a speedy trial, and protection from cruel and unusual punishment leads me to a certain level of discomfort when I learn that my own country employs torture in the name of national security.

We’ve been told that waterboarding has saved lives. Even one of our Supreme Court justices, Antonin Scalia, wrote that, “the game of bait-and-switch that today’s opinion plays upon the nation’s commander in chief will make the war harder on us. It will almost certainly cause more Americans to be killed.” Opinions like this seem to say that the Constitution is getting in the way of national security. In this case, do the ends justify the means? Is protection of the nation a higher goal than adherence to the ideals expressed in our nation’s most important legal document? Deciding that our constitution is only important when it doesn’t get in the way of national security is a step down a very slippery slope. Supreme Court justice Anthony Kennedy wrote in the court’s majority opinion that “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Justice Kennedy also wrote, “Liberty and Security can be reconciled; and in our system they are reconciled within the framework of the law. The framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.” Our Constitution was borne out of the oppressions that we first suffered as colonists under British rule. Have we so easily forgotten?

If American soldiers were being captured and treated by our enemies the same way we’ve been treating Gitmo and Abu Ghraib detainees, we’d be screaming bloody murder. Yet our government is engaging in the very kinds of activities for which we as the American people would condemn other countries who were guilty of the same behavior. The Bush administration has made a practice of trampling the Constitution in the name of national security during our “war on terror.” Now the Supreme Court has begun to force our government to listen to the collective conscience of America as expressed in its constitutional ideals. If we do not embrace those ideals, regardless of the circumstances, our country reduces itself to nothing more than a gang of thugs with a lynch-mob mentality.

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Then last week was the decision that the death penalty amounted to cruel and unusual punishment in crimes that did not take the life of the victim. The case involved a man on death row because he’d been convicted of raping his young stepdaughter. Evidently, the legislators in Louisiana had decided that the rape of a child was an especially heinous crime (no argument from me there) for which the death penalty was justified. Once again, my sympathy for a man convicted of such a crime is limited, even if he lives on death row. I do find a couple of things disturbing, though. First, I was surprised that Democrats and Republicans alike (and apparently most of the American people) disagreed with the ruling of the court. It feels a little bit like an angry lynch mob has been told to go home and forget about today’s hanging. But the Supreme Court gets to do that. They are, by definition, correct in every ruling they make, because there is no higher court. I’m disappointed that Americans cannot accept that the court has told them that lynching for this crime would be an unconstitutional act.

The other part that disturbs me doesn’t have so much to do with the ruling of the court as it does the deficiencies in our penal system. Our system of laws and punishment uses incarceration (and other punishments) for the purposes of deterring criminal activity, punishing offenders, protecting the public from violent criminals, and rehabilitating offenders into law-abiding citizens. Does incarceration meet any of these goals? The prospect of jail time, or even the death penalty, appears to do little to deter criminals–nobody thinks they’re going to be caught. Is it punishment to go to jail? No doubt, it can be. But yet we hear stories about former convicts who commit crimes so they can go back to jail and have a bed and three squares a day. I suppose it partially succeeds in protecting society from violent criminals, but we still read about ex-cons going back to a life of violent crime when the leave jail. And how many convicts are rehabilitated and assimilated into society when they are released?

Here in Colorado, several years ago we increased the jail sentences for many types of crimes. Did it affect the crime rate? Hardly. What it did do, though (besides giving our elected officials cause to claim that they were “tough on crime”–probably the main reason the laws were passed to begin with), is result in skyrocketing costs and overcrowding in our prisons. How our elected representatives didn’t see that coming, I’ll never know. It, and the aforementioned law in Louisiana, are just glaring examples of how we continue to do the same things but expect different outcomes. Our penal system is completely broken. Maybe our punishments are too tough. Maybe they’re not tough enough. Perhaps we let people out of jail that should be kept forever. Perhaps we put some people in jail that really don’t need to be there. I don’t have a solution to this problem, but there’s no denying that the problem exists.

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Finally, there was the ruling by the Supreme Court that Americans have a right to possess guns in their homes for self-defense. The majority of justices agreed that the Second Amendment did not limit the right to bear arms to service in a militia, while the dissenting justices disagreed. I’ve expressed my own opinions on this topic in previous posts, so I won’t repeat them ad nauseum here. But I was certainly surprised that the justices were split 5-4 on this decision. I was further surprised that no one (to my knowledge, anyway) argued that our founding fathers used the Second Amendment to ensure that the government could never disarm and then oppress its citizens. An armed citizenry is a free citizenry, after all. I was really astonished that the dissenting justices would argue that, since DC citizens could possess rifles and shotguns, that they were not denied the ability by the handgun ban to protect their homes. They must have overlooked the fact that DC laws mandate that rifles and shotguns either be stored with trigger locks or be disassembled, rendering them useless unless one can anticipate the need to unlock or assemble them. It seems, too, that any defense of the DC handgun ban against the Second Amendment must include some evidence that the handgun ban has been effective in protecting the citizens of DC. Given that DC’s crime rates, including gun crimes, have only gone up in the thirty years or so of the ban, that evidence is nonexistent.

It’s remarkable that other cities, despite the evidence to the contrary, continue to expect that tight laws controlling gun ownership will make their streets safer. There is no denying that big cities like Chicago and Philadelphia have serious crime problems, but gan bans and restrictions serve only to put the law-abiding citizen at a disadvantage to criminals who have no regard for the law (once again, ignoring the obvious political gains for elected officials who can say they are “tough on crime”). Perhaps it’s time to focus on getting criminals, and not guns, off the streets. This is an equally difficult proposition (and encompasses social agendas as much as law enforcement), but at least it focuses on the real issue. Continuing to rely on gun controls but expecting results that are different from the past is delusional, at best.

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So there you have it. Three contentious Supreme Court cases, all decided by a 5-4 margin, sometimes crossing ideological lines. Republicans appeared to be happy only with the ruling on the handgun ban, while Democrats only embraced the ruling on Gitmo detainees, at best. It seems like only the court itself is interested in preserving, protecting, and defending the Constitution these days.