Legal Complacency

 With the release of Leqaa Kordia yesterday from detention, the last of the protesters has been freed from immigration detention whom the administration targeted last year based on First Amendment–protected activity. 

There's a tendency to want to celebrate this news. And yet—here—in this country—a person still spent more than a complete year of her life in a practical gulag—confined under a plastic structure, chained to a hospital bed—merely because she attended a protest that displeased our government. 

Likewise, Mahmoud Khalil missed the birth of his son, because he was in arbitrary detention at the time. 

We want to see the eventual release of all these people (even if the government is still trying to deport them; even if—in Kordia's case—they only released her subject to posting a six-figure bond!) as some sort of vindication of our legal system. 

But that legal system was not fast enough to prevent them from being disappeared in the first place, into a hole for months—or even a full year, in Kordia's case. 

It wasn't fast enough to prevent the government—our government—from effectively being able to utterly destroy their lives. 

I think of the caption under one of Goya's drawings, in the "Disasters of War"—No llegan a tiempo. They did not come in time. Here, our much-vaunted legal system with all its justice and equity certainly did not come in time. 

I think too of a short piece by the radical poet Harry Alan Potamkin, called "Seven Years." He was remembering a friend of his from the Wobblies, who was thrown into prison for seven years because of his political activities—before being suddenly released one day as if nothing had happened. 

His life and his family's lives had been utterly ruined by the persecution. But the government considered the matter settled. "You eventually got your freedom back, didn't you?" they say. "So what are you complaining about?" And that seems to be what's happening here. 

"I have thought of Bucky as the symbol of that terrible cruelty which could imprison and torment for seven years men born free, and then with a complacent gesture of freedom think that all is forgiven," Potamkin wrote. "The gallantry that slays and then forgives!"

Another instance of that strange complacency of our legal system has been on display in the recent actions of the Supreme Court. 

This past week, SCOTUS agreed to hear the Haiti TPS case on an expedited schedule. While they do so, they left in place a lower court ruling blocking the Trump administration from terminating protected status for Haitian immigrants in the immediate term. 

That's wonderful news. But I have no idea how to square it with the Court's decision last year to let the Trump administration end TPS for Venezuela before they had even heard the case on the merits. 

The two temporary interventions from the Court's emergency docket essentially reach polar opposite conclusions on the exact same legal question. It's not clear why Venezuelans should be denied the protections of the TPS statute and of federal anti-discrimination principles any more than Haitians. 

Nothing has changed in the law of the matter. The only thing that has changed are the vibes of public opinion. 

This time last year, many of our elite institutions—including the Supreme Court—appeared to think that Trump had an overwhelming popular mandate for his "mass deportation" program and was politically untouchable. 

Now, he seems unpopular and loathsome and everyone is fed up with him. People are no less fed up with his ICE police state tactics and his terrorism against noncitizens belonging to stigmatized minorities. 

And so, the Court's rulings bend with the winds to reflect this. 

As H.L. Mencken wrote in his Notes on Democracy: "No one familiar with the history of the Supreme Court [...] need be told that its vast and singular power to curb legislation has always been exercised with one eye on the election returns. Practically all of its most celebrated decisions, from that in the Dred Scott case to that in the Northern Securities case, have reflected popular rages of the hour, and many of them have been modified, or even completely reversed afterward, as the second thought of the plain people has differed from their first thought." 

Needless to say (and this of course was Mencken's point too)—this is not how the law is supposed to work. People's human rights are supposed to be respected even when doing so means going against the "popular rages of the hour." The courts are meant to be a counter-majoritarian check on the tyranny of greater numbers. 

But in practice, our legal system has rarely worked that way. For all our talk of the Bill of Rights and habeas corpus, people have throughout our nation's history been thrown into holes and dungeons and gulags whenever they happen to belong to particularly unpopular minorities—the "heretics," as Mencken called them. 

And the legal system has seldom bothered to redeem them—at least not until the fury of the mob exhausts itself and the winds of popular opinion shift back in the other direction. 

And so, our society still finds ways to destroy its heretics. If the government can't see an obvious way around the First Amendment or some Supreme Court precedent, it just makes up a new rule. 

They first charged me with disorderly conduct,

There being no statute on blasphemy.

Later they locked me up as insane, as Wendell P. Bloyd explains, in the poem by Edgar Lee Masters. He is explaining how his society managed to persecute his religious heresies—despite there being no obvious law on point. 

They always find a way. If you can't charge someone as a criminal, lock them up in "administrative" detention. 

That seems to be what happened to all of the protesters described above. The government knows it can't just throw them in prison directly for attending a protest—much as it wants to. And so, it uses the system of civil immigration detention—where the people in custody have far fewer legal protections and none of the usual rules apply. 

Yes, indeed, there is always a way to burn the heretics if you look hard enough. As William Blake wrote: 

The Priest sat by and heard the child.

In trembling zeal he seiz'd his hair:

He led him by his little coat:

And all admir'd the Priestly care.

And standing on the altar high,

Lo what a fiend is here! said he:

One who sets reason up for judge

Of our most holy Mystery.

The weeping child could not be heard.

The weeping parents wept in vain:

They strip'd him to his little shirt.

And bound him in an iron chain.

And burn'd him in a holy place,

Where many had been burn'd before:

The weeping parents wept in vain.

Are such things done on Albions shore.

Or on America's, for that matter?