Media

In reflecting on the fifth anniversary of 9/11, I spent more than a few moments trying to decide what I could write about that would have personal meaning for me and at the same time be of potential general interest to others.

A first thought was to be angry on a broad scale — to write about how the Bush administration had squandered the sense of national unity and the world’s sympathy that was a significant immediate fallout of the events of 9/11. Never in my lifetime has the outlook for the United States seemed as gloomy. Our leaders lie to us with impunity, our country is mired in a war in Iraq that drains our resources and soldiers’ lives with no end in sight, we seem no closer to declaring an ultimate victory in the “global war on terror” than we did 5 years ago, our status in the arena of world opinion has never been lower, we have an administration that ignores the dangers of global warming and other threats to the environment and instead works hardest at curtailing our civil liberties at every possible turn, all the while using doublespeak to champion “freedom” as its clarion call.

But it quickly became clear that more than enough other columnists and bloggers would be covering this territory.

A second thought was to be quite personal. I grew up in New York City and surroundings. I made many trips to the top of the World Trade Center, including dining at the Windows on the World restaurant. For a short time, I commuted between New Jersey and New York, passing through the World Trade Center almost every business day. And, throughout much of this time, the twin towers soaring above the the New York skyline was a daily sight, an icon of the place I called home. Although I did not personally know anyone who died in the attacks of 9/11, my emotional reaction to the demise of the towers still feels more than a bit like I imagine my reation would be to the accidental death of a close family member. There is a wound that never heals, that still brings forth tears when I focus on it.

But no, extending this theme further seemed too personal. We all have our stories of 9/11. I did not see any reason to burden you with an entire article about mine.

In the end, prompted by something I read in the New York Times on Sunday, I decided to focus on one aspect of the 9/11 fallout. Yes, it returns to the aforementioned realm of “anger,” but with a more narrow scope.

For the umpteenth time, I read of a government’s official defense of possible mistreatment (torture?) of captured individuals suspected of being terrorists. He said ” “When you are concerned that a hard-core terrorist has information about an imminent threat that could put innocent lives at risk, rapport-building and stroking aren’t the top things on your agenda.”

I have a conflicted reaction to this. On the one hand, I entirely agree. The last thing I would want is to have another catastrophe on the order of 9/11 and discover that it could have been prevented by more intense questioning of someone we had in custody. Depending upon the specifics, I might even be among the first to criticize the actions of those responsible for this failure.

Yet, on balance, I am more concerned about the implications on the other side of this fence. In particular:

• I recall all the articles and books that pointed out how 9/11 itself could have been prevented with better scrutiny of intelligence, better cooperation among agencies, and so on. In not one case was a lack of torture cited as a reason we did not prevent the attacks.

• In at least some cases, it’s important to remember that these captured individuals are only suspected of being terrorists. They have not been convicted. What if we made a mistake? Do we really want to imprison people for years and possibly torture them, only to later find out that they are guilty of…nothing?

• Finally, I am reminded of what the ACLU states when it is criticized for defending the First Amendment rights of an unpopular cause or group (I’m paraphrasing here): “It’s easy to defend the rights of those who agree with you. The real test of your commitment to freedom is your willingness to defend the rights of those with whom you vehemently disagree.”

In the same way, it’s easy to abide by the Geneva conventions in the treatment of prisoners and defend our own civil liberties at the possible expense of a degree of security, when very little is at stake. The real test of our commitment to freedom is when the stakes are large. If we wind up saying, in effect, “The rules apply until they are inconvenient,” then we ultimately have no rules at all.

This is not what I want as the legacy of 9/11.

In the last few days, the Supreme Court handed down two major decisions. One involved a challenge to the redistricting of Congressional districts in Texas. The other involved Bush’s use of military tribunals for Guantanamo detainees.

Neither of the decisions should lead you to stand up and cheer. But, as I’ll get to in a moment, the real problem goes beyond the decisions themselves.

In the first decision, the court upheld (with one exception) the Texas redistricting. Recall that this redistricting was (1) done after the 2002 elections, the same elections for which Tom DeLay and others are now under indictment for having illegally used corporate funds to support Republican candidates. After illegally obtaining control of the legislature, they used their new power to perform a mid-decade redistricting with the openly stated purpose of gaining more Republican seats in the U.S. House. They succeeded, grabbing six new seats, a significant margin for maintaining their control of the House. The Supreme Court has now given its blessing to this theft.

The Court achieved this result by sidestepping the issue of the illegality of contributions. In essence, the Justices said (1) the Constitution does not prohibit mid-decade redisticting and (2) all redistricting is political and that this case did not appear to overstep the bounds of normal political activity. Except for the judgment call as to whether or not this case overstepped the bounds of what is acceptable, I have to agree with the Court’s reasoning here. Yes, the ruling opens the door to having more and more states doing redistricting more and more often, but that’s another problem for another day.

The trouble I have is that elections are different from other political processes. You may believe that a President’s appointments to government agencies are outrageously politically motivated. But there is nothing illegal about this, so you are basically stuck. Except, you can vote him out of office. But if the electoral process itself has become corrupt, and your ability to a fair election is gone, there is no hope at all. That is why I wish that the Court had been willing to take a more negative view of what happened in Texas.

On the Guantanamo ruling, the Court came down against Bush, stating that the President lacked the congressional authority to conduct the military tribunals he established. That’s fine as far as it goes. But the ruling said nothing about the legality of detaining prisoners indefinitely without ever charging them. The ruling also clearly implied that, if Congress gives its approval (which it may well do), Bush could soon have the authority he needs to continue with business as usual. So while the media report this as a “setback” for Bush, I don’t see it as a very big one.

Still, the “real” problem here goes beyond the details of the rulings themselves. The problem is this: In both cases, the majority was the bare minimum of 5 justices. One vote in the other direction and the outcome would have been reversed. So, in some sense, it is not accurate to state that “the Court ruled” as much as it is to say “the court split and could not come to an agreement, which means we go with what the five vote majority decided.”

Yes, I know. That’s the way the system works. If a candidate for office wins by one vote, he still wins. But, perhaps naively, I have viewed the Supreme Court as a bit different. Remember those committee meetings you attended (there must be at least one or two) where the Chairman said that the goal was not simply to get a majority to agree, but to get a consensus? That’s how I view the Supreme Court. The Court is supposed to be the final arbiter of what is “true” in our legal system, at least in interpreting the Constitution. If 4 justices on the bench view the “truth” in the opposite direction from the majority, why should the average citizen place much weight to the majority view. Why not simply say “Heck, even the justices can’t agree on who is right and wrong here. So why should I believe that the majority got it right?” When jurors have to reach a verdict in a trial, the Court instructs them to keep working until they get a unanimous decision, or you ultimately wind up with a “hung” jury. But the Supreme Court plays by very different rules.

I would like to think that the Court decisions are not simply made on the basis of politics, on whether you are a “conservative” or a “liberal” justice. It has been my belief that justices should rise above their political biases to reach a conclusion that strives for a non-political interpretation of the law.

And yes. I know. In the end, judgments are still matters of interpretation and we cannot expect even fair-minded Supreme Court justices to always agree. In any case, politically-motivated justices are not a new phenomenon. Still, as with much of the rest of our current political landscape, the divisiveness seems more constant and more extreme than has generally been the case in the past. Of course, getting consensus would be easy if all the justices were of a similar mind. My point here is that I believe the justices should seek more of a consensus even when they initially disagree.

I have read that Chief Justice Roberts recognizes this as a problem and wishes to get rulings with a greater number on the majority side. He hopes to achieve this by narrowing the scope of controversial rulings so as to widen the number of justices that can agree to a ruling. While this may lead to more decisions that mainly support the status quo, I would still like to give it try. How refreshing it would be to see 7-2, 8-1 or even 9-0 rulings coming from the Court on controversial cases.

I have little hope that rulings can ever be narrow enough to gain Scalia’s support (when he is initially on the minority side) and share similar doubts about Thomas (whose main function appears to be to listen to Scalia and then say “What he said!”). So maybe 7-2 is the best we can hope for in many cases. But even that would go a long way to restore a belief that a Supreme Court ruling is the best reasoned and unbiased judgment of the best judicial minds in the country attempting to reach a common consensus, and not just a politically motivated split decision where the majority view is mainly determined by which political party appointed the most justices.