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Kaminer: Infallible Government that Can’t Do Anything Right?

This afternoon’s essay by Wendy Kaminer is valuable on two counts. First, it identifies some decidedly unAmerican language coming from the Obama administration:

The White House used up 50 words to say little in response: “Sen. [Lindsey] Graham has expressed interest in habeas reform and other policy ideas. We will review constructive proposals from Sen. Graham and other members of Congress that are consistent with the national security imperative that we close Guantanamo and ensure the swift and certain justice the families of victims have long deserved.”

But this vacuous statement is not innocuous. It acknowledges the demands of “families of (presumably 9/11) victims,” along with the national security benefits of closing Guantanamo, while omitting any mention of due process. When an administration spokesman talks about “swift and certain justice” for families, he means swift and certain convictions, with or without trials.

If the outcome of justice is certain, then it is not justice. It’s what our high school civics teachers used to mock the Soviet Union for: kangaroo courts with pre-determined outcomes and a mere show of process to achieve those outcomes. When media analyses sympathetic to Barack Obama describe the “Guantanamo problem” as one of ensuring that detainees are tried, but that no accused terrorists are freed as a result, I slap my head. When Barack Obama describes his challenge using the same language, I hit my head against the wall. How can a former constitutional scholar possibly let such words escape his lips with a straight face? Probably with a lot of practice.

But you can’t just let the detainees go to trial when you’re sure they’ll be convicted and indefinitely detain the ones you aren’t sure would be convicted. You can’t do that! Well, now, hang on a minute. Let me revise that statement: if you really believe in justice, you oughtn’t do that. Clearly it can be done, because George W. Bush did that for years, picking and choosing his trials or military commissions or just plain confinement as he pleased. Clearly it can be done, because the Obama administration may be planning to go ahead with just such a plan to the cheers of Republicans and other authoritarians.

Kaminer’s essay is valuable on a second point: identifying the bizarre cohabitation in Tea Party and other authoritarian brains of 1) the fervent conviction if the government says a person is a terrorist, then that person is a terrorist and no trial is necessary, and 2) the equally fervent conviction that government can’t do anything right:

Opposition to closing Guantanamo and affording due process to people who are only suspected of terrorism by officials who do, after all, make mistakes, reflects the cognitive dissonance that characterizes political protests today. Discontented voters don’t trust government to do much of anything right, except, it seems, arrest and detain without trial only those dangerous terrorists who deserve to be detained. Visions of government incompetence morph into visions of government infallibility when the subject is fighting terrorism. 50 percent of voters favor smaller government delivering fewer services, (according to a recent Pew survey); some rage against dictatorship in the form of universal health care; but generally the public has acquiesced in the creation of an expansive national security state that appropriates the dictatorial power to torture and detain people indefinitely, whether or not they’ve been found guilty of any crimes, or acts of war.

Kaminer doesn’t explain how or why these two thoughts come to coexist in the brain of the American Tea Partier without some form of mental explosion. I sure would like to know.

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