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No One Cares About Child Soldiers if They're in Guantanamo

In many ways, Guantanamo is not the exception, but far closer to the rule of our criminal justice system.

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In important ways, however, our domestic justice system is no better.  Darrell Vandeveld is a former Guantánamo prosecutor.  He resigned in a crisis of conscience in 2009.  He was also once a public defender in San Diego where he found that many defendants were able to get only a semblance of justice.  “Most of the defendants’ rights were honored only in the breach.  It’s an overburdened system that has only become worse.  Comparable to Gitmo?  No doubt.”  Vandeveld, who now heads the public defender office in Erie, Pennsylvania, stresses that, while the outrages are not identical, they are comparable.

Legal Black Holes, At Home and Abroad

Gazing into Gitmo’s black hole can also easily provoke disturbing reflections on the rule of law in wartime America.  As another lawyer remarked 2,000 years ago while his republic was degenerating into empire, “ Inter armas silent leges” (in time of war, the laws fall silent) .

Keep in mind that the Global War on Terror -- a name the Obama administration has demurely dropped without dropping the war that went with it -- is by no means the only war deforming our justice system.  For the past three decades, the War on Crime and the War on Drugs have been in full fury, becoming ever less metaphorical as budgets for police and prisons skyrocket, and then skyrocket some more.  These domestic crackdowns have come with much martial rhetoric and political manipulation of fear and anger, clearing a wide path for the excesses of that Global War on Terror.  By overburdening the criminal courts and prison system to a hitherto unimaginable degree, these “wars” also created legal black holes where the rule of law is notional at best.

Take the Prison Litigation Reform Act of 1995, which made it nearly impossible for inmates to sue prison authorities, and has put thousands of Americans beyond the reach of any kind of juridical authority.  According to Bryan Stevenson, a peerless capital-defense litigator and executive director of the Equal Justice Initiative in Montgomery, Alabama:

“U.S. prison officials have obtained greater and greater discretion to send someone to solitary confinement for years; to force people into their cells naked, without meals; to inflict punitive measures without any possibility of outside intervention.  It’s often a closed system whose managers have all the authority, especially at our supermax facilities.  They function in many ways like Guantánamo.”

Gitmo and Bagram were well within our capabilities before 9/11.  Yes, it’s true that Bush administration officials and pundits told us with excitement about how, in our counterattack on al-Qaeda, “the gloves were coming off.”  For a great many Americans already in U.S. prisons, however, those gloves had never gone on to begin with.  This raises some vexing questions about how we budget our indignation.  It is not at all clear why violent interrogations, abuse, and torture should be more scandalous when they happen overseas than in Chicago.

What explains this collective Jellybyism?  Is it because so many of our domestic inmates, especially in the regions where national opinion is produced, are African American and Latino, whereas most of our professional social reformers in the nonprofit sector are white and Asian?  Is it because most of our elite public-interest lawyers and white-shoe pro bono advocates come out of a top half-dozen law schools where they most likely got a nice taste of well-tended federal courts, but little if any exposure to our overburdened state criminal courts?  Is it just too depressing to think about our crumbling, overstrained criminal justice system in Guantánamo-like terms?  Does compassion fatigue for those atrocities closest at hand always set in first, and hardest?  Whatever the reasons, the gaping legal black holes in our domestic justice and penal system have acquired the seamless invisibility of an open secret.

 
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