In the Penal Colony

Eva Ósk Arnardóttir is a young Icelandic woman who came to New York with some friends of hers for the Christmas holiday. Her friends made it through passport control at JFK. Eva, who had stayed in the US for three … Read More

By / December 20, 2007

Eva Ósk Arnardóttir is a young Icelandic woman who came to New York with some friends of hers for the Christmas holiday. Her friends made it through passport control at JFK. Eva, who had stayed in the US for three weeks past the expiration of her visa in 1995, did not make it through passport control. Instead, she was detained in a shifting series of holding pens, transferred from one to the next with her arms and legs shackled, subjected to an interrogation Joseph K. would have recognized ("When did you have your last period? What do you believe in? Have you ever tried to commit suicide?"), denied contact with friends, family, or consular representation, denied food, water, and sleep for hours upon hours, and finally deported back to Iceland, presumably after her captors realized she isn't the number three man in al-Qaeda.

Several points: fortunately for Eva, she was eventually let go. However, if George Bush had declared her an enemy combatant, he could have shipped her to Guantanamo Bay where she would have languished incommunicado without access to counsel for years on end, until, if she were lucky, she would have come before a Combatant Status Review Tribunal, which would be empowered to try and convict her without informing her of the charges against her, operate without a presumption of innocence, and reach its verdict on the basis of hearsay. Provided no other detainee tried to cop a plea by incriminating her, or gave up her name during a waterboarding session, the CSRT might fail to convict her (CSRTs don't really ever acquit anyone), in which case, she might be released, but then again, if the government concluded that news of her wrongful imprisonment would damage the US's national interest, it might be still more years before she was freed. All the while, the government of Iceland couldn't have done a thing about it, and you and I never would have heard of her.

Now, if a blond Viking woman can be shackled and deported out of the US for a twelve-year-old minor procedural violation of a visa, it doesn't require a huge inductive leap to conclude that many other innocent people, particularly squat, tan, bestubbled men, have been treated as deplorably or worse. (In fact, it takes no induction at all; we already know it's happened. See here, here, and here.)

And, of course, it's not just dirty foreigners who must be guilty of something one way or another whose civil and human rights the Bush administration claims license to trample upon. Bush claims the right to do unto anyone, anywhere in the world, including American citizens, as he has done unto Khaled al Masri and Maher Arar. Should we trust that he won't misuse such power, even though he already has, serially? We shouldn't have to be in a position to trust him. The old saw about how we're a nation of laws and not men is terribly trite, except that that is precisely the doctrine that the Bush administration has spend the past seven years subverting.

Moreover, if Bush or any other president chose to exercise his (ahem, or her) arrogated power of indefinite detention without due process, he (or she) could exercise the same power to prevent anyone from ever learning of it. So the Posnerish idea that public opinion or toothless and restricted congressional oversight constitute a sufficient check on executive power turns out to be vacuous: the power the administration claims for itself, in virtue of what it is, creates an incentive never to comply with oversight and to conceal any information which could yield unfavorable public opinion.

What, as Lenin, would say, is to be done? For starters, as I hope the foregoing shows, the legislative and judicial branches need to have enforceable checks on executive police powers — if our liberty depends upon the president's whims, we do not have liberty. As for cases like Eva Arnardóttir's, let's assume that my preferred policy — dismantling the Department of Homeland security and TSA, and adopting the Israeli model of airport security — is off the table.

Shameless Friedmanite free-market cheerleader that I am, I propose a tort system whereby Joe Lieberman's cadets have as much latitude as they wish in detaining non-citizen passengers at airports. However, at the same time, all detained passengers have a right to consular representation upon their apprehension, and if not admitted to the US, must be turned over to their home country's jurisdiction after a reasonable period of time (say 72 hours). Detainees would then have a right to sue not only the US government, but the specific Homeland Security officials, and have their cases heard before an independent arbitration panel which can take into account not only the question of whether the evidence justifies refusing to admit an individual to the US — and the evidentiary bar might be fairly low for — but also award punitive damages on the basis of excessive force used in the detention. So, an airport interrogator can deport anyone he wishes to, and if he passes a very low evidentiary threshold for doing so, he is immune from consequence. But if he behaves bestially, he can expect to be paying big chunks of all his future earnings to his victims. That should adjust the relevant incentives in the right direction. Any takers?

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