How judges with empathy kept Guantanamo open

On Tuesday, Senate Democrats ran like scared rabbits from President Obama's plan to close the prison at Guantanamo Bay. They blocked funds for closing the detention facility, and they voted to prohibit any transfer of the prisoners to U.S. soil.

House Democrats were a week ahead of them.

You don't need a pollster on the payroll to know that the American people have no sympathy for the terror detainees and no interest in hearing about their due process rights in U.S. courts.

In a setting just dripping with irony, the president who has driven his new Dodge pick-ups over the constitutional rights of U.S. investors stood in front of the Constitution in a cavernous room at the National Archives Thursday and tried to explain the importance of adhering to the Constitution when dealing with foreign terror suspects.

Good luck with that.

The irony gets richer when you consider that President Obama's Guantanamo problem was caused by another one of his deeply held beliefs: the idea that Supreme Court justices should have "empathy" and experience with the real-life problems of average people.

Earl Warren was the governor of California when President Eisenhower named him to replace Chief Justice Fred M. Vinson, who died suddenly of a heart attack in 1953. Warren had never been a judge, but he knew enough about 'the real-life problems of average people' to become the first person ever elected three times as governor of California.

At the time of Chief Justice Vinson's death, the Supreme Court was stalling a decision on the school desegregation cases. Vinson had been a vote against overturning Plessy v. Ferguson, the 1896 "separate, but equal" decision. He argued that the Court did not have the legal authority to ban segregation when Congress was on record as being in favor of the practice. "I don't see how we can get away from the long established acceptance in the District," he told his colleagues. "For 90 years, there have been segregated schools in this city."

The new chief justice saw it differently. "Personally," he told the other justices at their December 12, 1953, conference, "I can't see how today we can justify segregation based solely on race....my instincts and feelings lead me to say that, in these cases, we should abolish the practice of segregation in the public schools--but in a tolerant way."

Segregation, which was deliberately left in place by the framers of the Fourteenth Amendment, presented unique constitutional and legal problems, and the Warren Court is justly admired for its impatient decision to abandon legal precedent and rescue generations of innocent Americans from second-class citizenship.

However, the Court's empathy didn't stop at segregation.

Chief Justice Warren's instincts and feelings were at work again in 1961, when the Court ruled (6-3) in Mapp v. Ohio that judges must throw out evidence that was illegally obtained, and in 1966, when the Court ruled (6-3) in Miranda v. Arizona that judges must throw out confessions if police had failed to read a suspect his rights.

These decisions, and others like them, were made under the "Incorporation Doctrine," a concept created by the Supreme Court over the course of the 20th century. It holds that some parts of the Bill of Rights are so fundamental to the idea of due process of law that they must apply to the states under the Fourteenth Amendment, which bars any state from denying due process of law to any person. Prior to the invention of the Incorporation Doctrine, the Bill of Rights did not apply to the states at all.

But while the Supreme Court was writing new rules to throw out evidence and confessions, something unexpected happened.

The public lost confidence in the justice system.

That's why President Obama can't close Guantanamo.

"Are we really going to insist that the jihadist with a suitcase nuke captured in Times Square be read his Miranda rights?" asked Sen. John Cornyn of Texas following President Obama's speech on Thursday, "Embracing a strategy in which the criminal justice paradigm is used to fight terrorism is misguided and reckless."

Reckless.

It's reckless to try a terrorist in a criminal court because he'll get off on some technicality. That's what a lot of Americans believe.

That's what the Bush administration believed.

That's what well-intentioned prosecutors believe when they violate the rules and withhold potentially exculpatory evidence from a defendant's lawyers. They believe they have the right guy in custody, and they believe the system will let him off on a technicality.

That's what a large proportion of the public believed when O.J. Simpson was acquitted of murder after Judge Lance Ito ruled that the jury could not hear evidence that Nicole Brown Simpson feared her ex-husband was going to kill her, but could hear evidence that Detective Mark Fuhrman had used racist language while working with a screenwriter.

Some of the Guantanamo detainees may be innocent and wrongly accused, but Americans don't have confidence that a courtroom verdict of "not guilty" means the accused was, in fact, not guilty. Instead, they believe the defendant had the help of slick lawyers who knew all the angles and found some paperwork error that let a guilty person walk free.

Judges with empathy are responsible for this.

Ironic, isn't it?

"I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large," wrote Justice John Marshall Harlan in his Miranda dissent. "How serious these consequences may prove to be, only time can tell."


Copyright 2009

Editor's note: Source notes can be found in "How the First Amendment Came to Protect Topless Dancing," available online at http://www.ExtremeInk.com/appendix.htm. If you're interested in the subject of trade-offs between public safety and Constitutional rights, check out The 37th Amendment: A Novel, available from Amazon.com or by special order at any bookstore.

.