The NDAA shows that justice is blind in America, but in a bad way

Summary:  Last week saw yet more evidence that the two parties have similar goals for America, differing mostly in the speed with which they’ll drive us there. We also learn that Justice is blind in the New America, as it was in the America-that-once-was, but in a very different way.

“Many remark that justice is blind. Pity those in her sway, shocked to discover she is also deaf.” — from David Mamet’s play “Faustus” (2004)

In 2011 a bipartisan majority passed and Obama signed the National Defense Authorization Act, reducing the scope of our remaining provisions. In May I wrote Please applaud this brave judge. We have too few of them in America today. — about Judge Katherine Forrest, who placed a stay on some of its worst provisions. But in the New America such acts of judicial independence are rare. Last week a three judges — all Obama appointees — of the US Court of Appeals for the 2nd Circuit issued an order over-riding Judge Forrest. Here is the ruling; here is a pdf of all filingson the case. Here is their reasoning (citations omitted):

For the following reasons, we conclude that the public interest weighs in favor of granting the government’s motion for a stay.

• First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, “based on their stated activities,” plaintiffs, “journalists and activists … are in no danger whatsoever of ever being captured and detained by the US military.”
• Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the US. See NDAA §1021(e) (“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of US citizens, lawful resident aliens of the US, or any other persons who are captured or arrested in the United States.”).
• Third, the language of the district court’s injunction appears to go beyond NDAA §1021 itself and to limit the government’s authority under the Authorization for Use of Military Force.

In light of these and other factors, we conclude that the interests of justice would best be served by granting a stay of the district court’s permanent injunction.

This is similar to the judges who feigned blindness when asked to prevent the US government’s assassination of Anwar al-Awlaki (details here). In America today justice is rare because judges prefer to be blind to the wider context of the disputes before them, more sensitive to the needs of the government than the liberty of the citizens.

Conclusion: we cannot count on the judicial system to protect either the Constitution or our liberties.

These ancient conflicts are seen in the interpretations of Lady Justice

“Justice is justly represented blind, because she sees no difference in the parties concerned. She has but one scale and weight, for rich and poor, great and small.”

— William Penn (1644-1718, founder of Pennsylvania), Some Fruits of Solitude In Reflections And Maxims (1682)

To better understand we turn to this excerpt from “Images of Justice” by Judith Resnik and Dennis E. Curtis (Yale Law), Yale Law Journal, January 1987.

A political explanation is offered by Judge Otto Kissel, who notes that the blindfold became a popular attribute of Justice during the 16th and 17th centuries. Kissel argues that inclusion of the blindfold in Justice imagery coincided with the establishment of professional, independent judges, who stood apart from the sovereign and were not simply acting at its behest.’  Justice blindfolded cannot see the signals a sovereign might send on how to decide a case.

… This “no fear or favor” theory might explain why the blindfold imagery endured. As notions of equality gained currency in the eighteenth and nineteenth centuries, it made sense to imagine a blindfolded Justice as more fair than a Justice with sight.

… Interpretations of the blindfold as representing separation and distance, as a sign of the judge apart, connote a justice somehow barred from receiving some kinds of information. The blindfold prevents the judge from acquiring some of the knowledge that the unblinded possess. But to judge requires knowledge, some kind of sight. How effective is a judge who is unable to perceive the context in which the dispute arises? Will outcomes be more fair or will such a judge be insensitive to human needs? What should be the response to the tension between the needs of judges to know and the fear that the knowing will corrupt the fairness of judgment?

… Finally, in the ambiguities of the image, we see reflected the uncertain position that judges inevitably hold. As employees of their sovereigns, judges are always, at some level, beholden to their sovereigns. But to judge is to “speak truth to power,”  to seek to hold and, on occasion, to exercise some form of jurisdiction beyond that given by or belonging to the sovereign, so as to have a measure of critical independence from the sovereign. Although governments attempt to use judges and justice imagery to legitimate sovereign acts, we look also to the imagery for reminders of that critical distance between judge and sovereign. Perhaps the images — despite rulers’ ambitions to the contrary — do not always equate judge with sovereign.

One last insight

“If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected — those, precisely, who need the law’s protection most! — and listens to their testimony.”

— James Baldwin, No Name in the Street (1972)

For More Information

About judges:

• Sparks of justice still live in America – cherish them and perhaps they’ll spread, 11 September 2009
• Code red! The Constitution is burning., 5 August 2010 — Judges pretend blindness to the hit on Anwar al-Awlaki
• Another American judge weakens the Republic’s foundation, 8 August 2010
• Why should we care about the Supreme Court’s ruling allowing strip & cavity searches of prisoners?, 5 April 2012

About the National Defense Authorization Act:

1. Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
2. RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011
3. “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress), 22 December 2011