Wednesday, November 17, 2010

Junk Law

     With a maelstrom of stunning news today, it is hard to decide where to begin.  The Transportation Security Administration chief John Pistole or the near acquittal of Ahmed Ghailani?  Both events are being well reported, but there may be a bit of synergy from considering them together.  Regarding the TSA chief, we have a federal bureaucrat imposing a choice on millions of air travelers:  Star in a peepshow or get groped.  Regarding the court case of Ghailani, a judge appears to have abused the rules of evidence and nearly procured a full acquittal of a genuine terrorist.  The events seem to be inspiring similar rage among the citizens of the republic.  Apart from that thoroughly justified rage, the common element in these two travesties is hyperactive government.  There could hardly be higher-octane fuel for the argument to curtail government power.

     The more significant event from a legal perspective may be the precedent set in the Ghailani case.  Facing over 200 charges, Ghailani eluded all but one.  In 1998, a suicide bomb attack in Dar es Salaam, Tanzania, killed dozens.  Ghailani obtained the truck and the fuel tanks that exploded when the driver plowed into his target.  It appears the judge at trial excluded vital evidence, including testimony of a prosecution witness who sold Ghailani the fuel tanks, because it was obtained by investigators using enhanced interrogation techniques.  It is unlikely such techniques were any worse than water boarding, which does no permanent harm to the terrorist and can only be called “torture” by a radical re-interpretation of the original meaning of “cruel and unusual punishment.”  Once again, we have a judge re-interpreting the Constitution based on his or her own moral principles, not the intent of the drafters.  In their day, cruel punishment included cutting off hands or stoning.  Given the continuing existence of such measures in some parts of the world, the original understanding remains relevant and contemporary.  In any event, water boarding has been used on only three men, including the 9/11 mastermind Khalid Sheik Mohammed.  If Ghailani was not water boarded, then the judge excluded vital evidence of guilt on even flimsier grounds.  It is to be hoped that the judge’s ruling does not become precedent in other cases.

     On the other hand, perhaps Ghailani received rough treatment in foreign hands before he arrived at Guantanamo Bay.  Perhaps the judge decided rightly on the Eighth Amendment question.  Perhaps.  At the end of the day, the government evidently holds classified evidence against Ghailani that confirms his direct involvement with the attack.  Such evidence cannot be introduced in civilian court without compromising U.S. intelligence sources and methods, thereby endangering even more people.  If the judge did decide the evidence question correctly, doubtful though that seems, then the decision to take this case to trial in civilian court was all the more dubious.  In that case, the hyperactivity of government would be located at a higher level than a mere trial judge.

     Compared with the judicial (or prosecutorial) hyperactivity in the Ghailani case, the astounding decision of TSA chief John Pistole to impose new search procedures on airline passengers carries little legal heft.  Two pilots have apparently already filed suit against TSA, but so far, the biggest effect has been the rhetorical detonations from Left and Right.  The Pistole rule requires passengers to submit either to a full-body scan revealing them effectively nude or to a ridiculously euphemized “pat-down” that includes an actual, open-palmed genital grope.  As one fully justified passenger remarked, “If you touch my junk I’ll have you arrested.”

     There are many reasons to oppose the Pistole rule, and it won’t be long before loud voices call for him to be fired.  This rule is, in itself, a victory for the terrorists ultimately more widespread than the Ghailani outcome.  Part of what terrorist organizations want to do is to inhibit our liberty.  Doing so is next best to killing us.  By frightening us into giving away our dignity, they score points against millions of us whom they can never reach with direct harm.  All the more rich material for their dark laughter is the probability that the scanners do not even detect the plastique and powdered explosives they have been using in recent attempts.  We are, then, giving away our dignity for nothing.

     When has there been a terrorist attempt foiled by a scanner?  All the recent success against these attempts has come from good intelligence, the coöperation of foreign governments, or the swift action of airline passengers and crew.  TSA’s efforts may be preventing many attempts on flights that originate in the U.S.  Indeed, they probably are.  On the other hand, no amount of security will ever make us completely safe.  We are already, on the numbers, still safer in the air than on the highway.  There is simply no reason to impose these new affronts to dignity and liberty, especially since they will ultimately prove ineffective.  The current rule exempts children under 12 from the full-body search.  In Vietnam, the Viet Cong used children as unwitting suicide bombers.  What is to prevent al-Qaida from doing so today?

     The worst piece of this Pistole rule is that Pistole’s parent agency, the Department of Homeland Security, is actually considering some accommodation for Muslim women—and only Muslim women—who object to the pat-downs.  Has the world gone mad?  Rather than follow the effective example of the Israelis, who spend more effort looking for the terrorist rather than the device, our hyperactive government is on the verge of adopting reverse-profiling in selecting victims for indecent assault.

     It was a day for junk law indeed.

1 comment:

  1. Even in their own country, the Taliban dress as women to deliver their suicide bombs. Are we dumb or what?