Modern democratic thought rests on certain basic principles. A society with habeas corpus, without torture, with assurance of legal representation, is superior to a society without laws or a tyranny. That is a starting point. A decent life for humans one might say – rephrasing Aristotle’s definition of ethics in an uncontroversial way - relies on the former and speaks out, with a thousand reasons and voices, against the latter. The precondition of equal basic rights for each citizen (more generally, of human rights for each person, though that set of rights is more circumscribed) – Rawls’ first principle of justice – is an extension of this basic point about law. Michael Oakeshott’s notion of civil association or civitas in which laws enable each person to pursue her goals – her individuality – so long as she doesn’t harm others – also relies on this point.
Thus, in Democratic Individuality, I argued for the moral objectivity of certain basic principles, those through which every distinctive modern political view passes (ones which excludes fascism and by extension, other dictatorships with facsimiles of decent justifications as an anti- or apolitical). The emergence of massive American torture, affecting, as Amnesty International guesses (according to Amy Bruins, one of my students), somewhere between 15,000 and 70,000 people in secret prisons and sites (the numbers are guesses, trying to peer through the murk of anti-legal secrecy ejected by the Bush-Cheney administration) has made many more of us realize that a government can do things no skepticism about ethics could possibly tolerate.
Yesterday, Andrew Sulivan, a conservative, a critic of torture and longstanding advocate of Obama, put up a post on “the growing police state in America.” The example he gives, Hector Veloz, the son of a decorated Vietnam war veteran, detained on mistaken identification as an illegal immigrant for 13 months, is frightening. The rule of law is primary; it must be fought for. Immigrants do have the right to legal counsel (although it has been challenged by the government ), but unlike criminal defendants they are not assigned lawyers if they cannot pay (so a citizen like Veloz, mistaken for an illegal, initially gets no monetary help in the form of an appointed attorney either) as a reader of Sullivan’s blog pointed out. Whatever the broader political view, no decent person should disagree with the point of this article.
Sullivan came as an immigrant from England in 1984. He has also remarked movingly on the terrible decline in personal liberties which has occurred between now and then (though it wasn't so good for immigrants and radicals then either, perhaps the secret of the decline).
As Jefferson once said of the Alien and Sedition Acts in 1800, what hurts “the friendless alien” also affects the citizen who had better not become too cocky “for already has a sedition act marked him for its prey.” The sweeps of Arabs in the United States after 9/11 and indefinite detention and torture have already lead to the jailing of citizens like Veloz. As Pastor Niemoller once said of the law in Germany, first they came for the Jews and communists and I did nothing…and when at last they came for me, there was no one left to protest.
It can be dicey after 9/11 for most people, but for immigrants, even completely legal ones, the odds of trouble are higher. The total power the authorities have - especially over Latinos - would give Lou Dobbs a dangerous case of priapism. One simple story:
The son of a decorated Vietnam veteran, Hector Veloz is a U.S. citizen, but in 2007 immigration officials mistook him for an illegal immigrant and locked him in an Arizona prison for 13 months. Veloz had to prove his citizenship from behind bars. An aunt helped him track down his father's birth certificate and his own, his parents' marriage certificate, his father's school, military and Social Security records. After nine months, a judge determined that he was a citizen, but immigration authorities appealed the decision. He was detained for five more months before he found legal help and a judge ordered his case dropped.
Compare this with the plight of Skip Gates and a little perspective emerges. Immigrants or immigrant suspects are at the mercy of anyone with a badge and a gun in America. If immigrants or legal natural-born citizens with the wrong skin color have no money and can't afford a lawyer, they are no match for a bureaucracy like Immigration and Customs Enforcement. And there is no due process:
In immigration detention it falls to the detainees to prove their citizenship. But detainees don't have the constitutional protections, such as the right to legal counsel, that would help them prove their case.
Serves them right for being born Latino, I guess.