Saturday, June 13, 2009

Human Rights Watch's true-blue conservative

Early this year, David Brooks put on his Big Think cap and counterpoised against our society's alleged individualist shibboleths a communitarian ethos put forward by political scientist Hugh Heclo in a book published last summer, On Thinking Institutionally. As relayed by Brooks:

In this way of living, to borrow an old phrase, we are not defined by what we ask of life. We are defined by what life asks of us. As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.

Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. Journalism imposes habits that help reporters keep a mental distance from those they cover. Scientists have obligations to the community of researchers. In the process of absorbing the rules of the institutions we inhabit, we become who we are.

New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. “In taking delivery,” Heclo writes, “institutionalists see themselves as debtors who owe something, not creditors to whom something is owed.”

While Brooks never used the word "conservatism" he was plainly holding up this "institutional" ethic as a kind of Platonic conservative ideal. Proud professionals devote their lives to "saving" the honorable essence of institutions that themselves conserve the distilled wisdom of generations.

From this standpoint, Tom Malinowski, Washington Advocacy Director for Human Rights Watch, is a true-blue conservative. Consider his call to trust in the accumulated wisdom of core U.S. institutions in his June 9 testimony before the Senate Judiciary Subcommittee on the Constitution:
Seven years after Guantanamo opened, a stable set of rules for determining who should be detained and with what degree of due process has still not emerged.

Some of these problems are due to the inherent flaws of the system. But many are the inevitable result of creating any new system from scratch, especially one that deviates so much from standards with which US courts are comfortable and American lawyers are familiar. America's civilian criminal justice system, on the other hand, has been around for more than 200 years. The Uniform Code of Military Justice has been around for almost 60. We've had all that time to get the kinks out of the system, to establish stable rules, to train a cadre of lawyers and judges who know those rules, and to develop special procedures for special kinds of cases, including those involving terrorism.

If we try again to create a new system from scratch, if we rely again on trial and error to work out the rules, the result will again likely be more error than trial. Eventually, stable rules may emerge, after all the legal challenges and legislative re-dos are exhausted. But how long should we be prepared to wait to get to that point? Five years? Ten years? Can the United States afford more years of controversy over how to detain suspected terrorists?
To Obama, who has signaled that he wants to revamp rather than scrap the improvisations of the Bush administration - military commissions and preventive detention -- Malinowski points out that there's a kind of infinite regress in trying to reproduce the due process protections of the criminal justice system in a new regime that grants the Federal government powers the whole purpose of which is to short-circuit those protections:
Theoretically, one could design a system of preventive detention that affords detainees such a high level of due process and judicial review that it would not look like Guantanamo, or even Guantanamo-lite. But if you allow protections similar to those already provided by federal courts and courts martial, why go to the trouble of creating a new system at all?
Commentators as diverse as Andrew Sullivan, Martin Wolf and Jack Goldsmith have pointed to a kind of conservatism in Obama -- a propensity to retool rather than radically remake existing institutions, a reform impulse that aims to restore institutions to working order. With regard to treatment of detainees, Obama promises to work within our political institutions, in concert with Congress and the courts, to revamp military commissions and create Constitutional rules for preventive detention. But reforming and "conserving" Bush's radical, ad hoc exercise of this power may simply serve to codify core violations of Constitutional principles as previously understood. As Diane Marie Amann, a law professor at UC Davis, warned in the wake of Obama's May 20, speech on national security:

He signaled a plan by which they — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

President Obama promised that his “new legal regime” — words identical to those Bush Administration official John Yoo used in 2002 –- will provide an array of “fair procedures.” That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.
Time will tell how "institutionally" Obama thinks about the U.S. Constitution.

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