Character and the Courts

By Fester:

Character is what you do when no one is watching, or what you do when there are multiple potential paths.  It is the moments of urgency, of confusion, of chaos and crisis when rational decisions are not able to be formed or full decision processes and loops run that character becomes critical as that informs the option space and choice space of individuals and groups.  It is at that point where the default assumptions become nakedly clear.

After 9/11, we as a country despite the best efforts of some, revealed an ugly character as we panicked and forgot about the differentiating factors that we like to believe makes the US as a whole exceptional.  We tortured, we profiled, we hired out mercenaries, and we launched a war of choice of neo-colonial conquest.  We failed ourselves in order to give a slight salve of liberty.  Our political and press process failed miserably in tolerating and encouraging these behaviors.  The oh so serious pundits and politicians who one would usually suspect of knowing better caved in and said that we had to torture, we had to invade, we had to suspend the Constitution as this was an unimaginable and deadly threat, while forgetting about the Soviet's 20,000 nuclear weapons.  Some of this was from fear, and some of this was from cold political calculus that fear inspired lashing out was what the median voter wanted.  We failed. 

Now that times have cooled down, this hysteria is receding.  The politicians who should have known better has been defeated for the Democratic nomination while someone who did what they could is being nominated and favored to win the White House.  The courts have been fighting a valiant action to protect their prerogatives by defending the Constitution against hysteria. And today's decision to grant Habeas Corpus by overturning portions of the fear inspired MCA has several great lines that assert what we should be and what we need to be (stealing these excerpts from TalkLeft:)

Security subsists, too, in fidelity to freedom�s first principles. Chief among these are freedom from arbitrary and unlawful restraint.....

Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. ...

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law....

These are assertions of first principals of American exceptionalism. We should be strong enough and tough enough to believe in our principals even when those principals look to be difficult and expensive to follow.  And by following those principals we advance our meta-narrative that we respect people, we respect the law, and that we play fairly.  And by advancing this narrative through real and expensive signaling actions, we would have undermined the central Bin-Laden narrative of a clash of civilizations where the Muslim world is defended by a band of strategically aggressive but scrappy fighters against a ruthless, imperialistic hypocritical United States.  It is this battle of narratives that we need to win in order to make us more secure.  Our principals are strong when we act upon them in times of crisis and danger, and we need to remember that.