Monday, October 07, 2013

Hamad v. Gates (9th Cir. - Oct. 7, 2013)

I can't really object to the legal reasoning of this opinion.  It seems correct.

But I don't think I adequately fathomed the depths of contemporary governmental power until I read it.

I knew the United States government could blow you up with a missile if it thought -- right or wrong -- that you were an enemy combatant.  No need for a trial or anything like that before you're killed.  I also knew they could put a hood on you, incarcerate you, subject you to rendition, and put you in Guantanamo for (in all practical effect) forever.  Sure, you could try to get a trial, or a military commission, or maybe (thanks to the Supreme Court, and no thanks to Congress) even habeas relief.  Good luck.  In the meantime, they can strip you naked, pile you up in a pyramid, deprive you of sleep, waterboard you, do all sorts of stuff to your genitals, and your dream will simply be to eventually get out of the place.

All that I understood.

The thing I didn't completely understand is how utterly, completely powerless you could be even if you got out.  Maybe I'm so used to traditional notions of justice that I fail to comprehend the reality that exists when undeclared wars against unseen enemies persist essentially forever.  Because in the back of my mind, I had a sense that the government -- and I'm not saying this actually happens -- deliberately decided to kill you, or to torture you, all the while declaring you an unlawful combatant even though it knew you weren't, you could at some point eventually sue them.  That'd be small solace while you were having your nether regions pounded (or whatever), but maybe it'd nonetheless be some solace.  If only in retrospect.

Of course I knew that there was such a thing as sovereign immunity.  Of course I knew that your position might not be so strong if you weren't a U.S. citizen.

But I also knew that there was a Constitution.  Surely you can get some relief -- relief in the form of damages -- in the event the government does something incredibly, brutally, undeniably shocking to you, right?  If your rights are violated, aren't you entitled to some relief beyond simply having it stop?

No.  No you're not.  Not in the slightest.

Maybe I'm just too deep in the weeds on this one.  Maybe I've commodified rights too much.  Maybe I should be satisfied with a judicial system that says that even though we're a democracy, we can do terrible things and as long as we at some point stop, everything's good.  No apology.  No damages.  Nothing.

But I'm nonetheless left with a feeling that such relief is hollow.  Better than nothing.  Better than keeping you in the illegal confinement and/or torture and/or whatever you had to do through.  But not as good as actually doing something on your behalf.  Something that, in some small part, tries to make things the tiniest little bit closer to even.

But that's not required. We can do it if we want.  But we generally don't.  At least not for someone who we've declared an enemy combatant.

I wish I could say that it's a brave new world.  But in many ways it's not.  This is what sovereign immunity naturally means.  And I don't think I previously understood it as concretely as I do today.