I guess Scalia wasn't kidding when he said that the Guantanamo Bay prisoners should count their lucky stars that they weren't in a different US facility, such as Bagram Air Base in Afghanistan.
American soldiers herded the detainees into holding pens of razor-sharp concertina wire, the kind that's used to corral livestock.
The guards kicked, kneed and punched many of the men until they collapsed in pain. U.S. troops shackled and dragged other detainees to small isolation rooms, then hung them by their wrists from chains dangling from the wire mesh ceiling.
Former guards and detainees whom McClatchy interviewed said Bagram was a center of systematic brutality for at least 20 months, starting in late 2001. Yet the soldiers responsible have escaped serious punishment.
The theme du jour here at Arms and Influence is the price we pay when we play games with the Constitution. Nothing about the 9/11 attacks, or anything that has happened since, has merited a revision of over 200 years of Constitutional interpretation. For example, as I said in the earlier post about Scalia's dissent in the Bournediene decision, the justices who arguing that the executive branch can make up any criminal procedures it damn well pleases, when handling foreign prisoners in foreign lands, won't find any support in the Constitution itself. Nor will Scalia find support, in the Constitution or Federalist papers, for his peculiar argument that, if the Congress and President agree on how to treat these prisoners, the judiciary has no right to review and possibly overturn these policies.
We need these restraints in place to protect us from ourselves. During frightening times, the laws should keep us from doing stupid things. During wartime, the Constitution still applies, and the Supreme Court still has a role to play, other than stepping aside to let the President do anything he deems necessary to protect American lives.
Often, these measures to protect Americans do exactly the opposite. You can go back to Hobbes and Locke for the Ur-arguments about how, without "civil society," people are bad judges of cases in which they have been wronged. We're not in a state of nature today--nor should we construct one, in the name of defending ourselves. We should be preventing the mistreatment of Americans as prisoners. We should be robbing our adversaries of arguments that the United States is a brutal, imperialist power. And we should be preventing another terrorist attack on the United States. These are all compatible objectives.
Swaggering know-nothings who like to cite books they have not read will often pull out Machiavelli's famous dictum that it is better to be feared than loved. However, it's important to read hos whole argument, which Machiavelli, being a good writer, summarizes in the concluding paragraph of that section of The Prince:
Returning to the question of being feared or loved, I come to the conclusion that, men loving according to their own will and fearing according to that of the prince, a wise prince should establish himself on that which is in his own control and not in that of others; he must endeavour only to avoid hatred, as is noted.
Which is why the title of the book is The Prince, not The Thug.
[Thanks to Steve Taylor for the original link to this news story.]