Habeas Corpus, Authoritarianism and Perspective

In a previous blog entry, I had lamented the fact that the US had seen it fit to deny habeas corpus to aliens who had been designated as "enemy combatants" by the president. Last week in a close 5-4 ruling, the Supreme Court reinstated habeas corpus for prisoners held in Guantanamo. With Kennedy writing the majority opinion and Roberts, Alito, Thomas and Scalia (RATS in short) dissenting, it is instructive to look at the actual opinion to try to figure out the fault lines on the court which are a mirror of some of the fault lines in present day US society.

The majority on the court based their opinion on the fact that some of the detainees at Guantanamo had not had charges filed against them in over six years of incarceration. They argue that the military tribunals set in place by the Detainee Treatment Act (DTA) have not been effective in granting due process to the detainees which is why the civil court option afforded by habeas corpus is now necessary.

And now to get to the main point of this blog entry: Scalia in a minority opinion disagrees (to put it mildly). He begins by stating that "Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war." [page 110]. Note the framing. First, the detainees are "alien enemies",  second,  they have been detained "abroad" (Guantanamo) and we are in the midst of an "ongoing war." Considering that the US has bases in about 60 countries with about 250,000 soldiers and personnel deployed overseas, it is a de facto empire - though very different from the British Empire that immediately preceded it  - and speaking of an "ongoing war" is disingenuous at best. What I like about Scalia though is that he opens his mind to us even more by later stating 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." [page 111]

What's going on here? Why is one of the Supreme Court justices resorting to garden variety scare tactics in his criticism of his colleagues. And note the use of "Commander in Chief" and "the war" in framing the argument. I think it should be clear that Scalia - and the 25-30% of 9/11 traumatized Americans that he represents - inhabit a very different perspective from most of the folks on Gaia. And strangely, it is Scalia and his ilk who frequently employ the bait and switch game - unconsciously accepting that we (the US) are a de facto empire at times while retreating to the standard imagery of an ordinary nation seeking to defend itself at other times. (This explains the "Nation's Commander in Chief" portion above.)

I wonder if Scalia (and the millions that he represents) are fundamentally rooted in a rigidly authoritarian mindset which might explain why we can understand them but they can't understand us. Does that make us - assuming a consensus here of course and using a simple binary distinction - libertarian which has its own problems?  I don't think so. I have no problem bowing to authority when the situation demands it. But, I think the asymmetry is more telling. When one perspective can model another perspective, then it is meta to the other and is capable of running the argument, "If I looked at this from this other POV, I'd get this" etc. I would have no problem if someone who thinks like Scalia showed the ability to fully model a progressive/libertarian and there were avenues (Faux News etc.) where this ability was showcased. But we don't see this and that's the problem. To close with sorta a sermon (gack), we all need to go beyond just understanding the power of framing and the ability of running arguments from different POVs. In dialogue with someone like Scalia, we need to be able to employ rapid fire jiu-jitsu maneuvers to avoid being framed in an argument of the type "Are you for or against aiding the enemy in granting them habeas corpus?" This is going to take a lot of practice.