56. Hope vs. Experience

Yesterday the New York Times ran an op-ed piece by Adam Cohen called "Democracy in America, Then and Now, a Struggle Against Majority Tyranny"  (but more pithily headlined "The tyranny of the majority" over at the last remaining remnant of Horace Greeley's journalistic throne).  Cohen's piece used the publication of Bernard-Henri Lévy's new book as the excuse for some reflections on Tocqueville:

Mr. Lévy, who is most passionate about American foreign policy, pays little attention to the issue Tocqueville was most intent on: how closely even a thriving democracy like America borders on tyranny. It is a subject that is particularly relevant today, with the president claiming he can wiretap ordinary Americans without a warrant, insisting on his right to imprison without trial anyone he labels an "enemy combatant," and warning critics of the Iraq war against "emboldening" the enemy.

Luckily for us, Mr. Cohen fills the gap left by M. Lévy, explaining why Tocqueville wouldn't worry:

[Tocqueville] believed in the power of American law to limit the excesses of the ruler - the exact issue in today's debate over the warrantless wiretapping of American citizens. He had great hopes for the judiciary. "The courts correct the aberrations of democracy," he wrote, and "though they can never stop the movements of the majority, they do succeed in checking and directing them." Tocqueville would not be surprised that the Supreme Court has limited the Bush administration's excesses in the war on terror - or that the administration has been eager to nominate justices with an expansive view of presidential power.

The executive violates laws passed by Congress, and this is an "aberration of democracy"?  There seems to be a category mistake here.

And: How did I miss the news about the Supreme Court limiting the Bush administration's excesses in the war on terror?  I suppose he's referring to Hamdi v. Rumsfeld, but surely the significant point about that case is precisely that it had zero real world effect, as Dahlia Lithwick pointed out 18 months ago.  Mr. Cohen's confidence in the Supreme Court is a classic case of hope triumphing over experience.

Coincidentally, yesterday also saw this lede:

Europe's human rights watchdog accused Washington yesterday of using "gangster tactics" by flying in terrorist suspects to countries where they would face torture, and criticised European countries who appear to have done nothing to intervene.

Dick Marty, a Swiss lawyer and senator, speaking at the Council of Europe's winter session in Strasbourg, is the person given the task of investigating allegations of extraordinary renditions (i.e., official kidnappings), secret prisons in eastern Europe, etc.  He

estimated that more than 100 people have been flown to prisons in third countries where they may have been tortured. "There is a great deal of coherent, convergent evidence pointing to the existence of a system of 'relocation' or 'outsourcing of torture'," Mr Marty told the 46-nation council.

Mr. Marty's interim report informs us that judicial investigations are beginning to spring up around the world:

In two countries (Italy and Germany) judicial investigations have begun into “abduction” of persons subsequently transported to Guantànamo, Afghanistan and other detention centres by means of aircraft belonging to entities with hidden direct or indirect links to the CIA. The Italian prosecution service has even issued arrest warrants against CIA agents after the violent abduction of a Muslim, Abu Omar, in a Milan street in February 2003. The German judicial authorities are taking part in the investigation and have themselves begun investigating the case of a German citizen of Lebanese origin, Khaled al Masri. After being arrested by mistake in Macedonia he was reportedly taken to Kabul for interrogation. Lastly, a Spanish judge is enquiring into whether the CIA used Son Sant Joan airport in Majorca as a base for transport of Muslim suspects, as announced by the Spanish minister of internal affairs, José Antonio Alonso, on 15 November 2005. The same aircraft as transported Abu Omar landed at least three times in Spain (and in other European countries).

But, of course, these various judicial investigations are unlikely to be any more effective than intervention by American courts, except perhaps by stirring up public indignation in their respective countries.  Courts, by their nature, can't reach out beyond the case in front of them.  The Fourth Circuit tried to hang on to the Padilla case precisely because it realized the judiciary had been victimized by a bait-and-switch.  But, as the Supreme Court informed it, it wasn't allowed to.  Not only that, but courts work retroactively.  They deal with things that have already happened.  They're always at least one step behind.

So I have to disagree with Mr. Cohen.  Not only has the Supreme Court not put any limits on the Bush Administration's increasingly-peculiar grandiosity, but no judiciary can do anything a determined executive branch can't evade.  A system of regulation that depends on judges to do the heavy lifting will always fail.  It's up to Congress -- and the electorate.