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Unpublished Paper
ExpressO (2008)
  • Fritz Snyder
  • Geri Fox

Overreacting to tragic events leads to even more tragedy. When it is the government which overreacts, individual constitutional rights can vanish. The fear, anger, and patriotism engendered during a war or by a terrorist attack can Aundermine the capacity of individuals and institutions to make clearheaded judgments about risk, fairness, and danger .... Reason and logic vanish. It is difficult to make calm, balanced decisions in a state of personal anxiety, outrage, or passion. Overreaction occurs, and individual rights disappear. Even the United States Supreme Court can get swept away. This article uses the Korematsu case as a case study in how things can go grievously wrong. We need to be reminded, in this time of responding to terrorism, about how good people can do bad things. The Supreme Court's darkest moments have rejected the idea of our political system governing its citizens as individuals rather than as groups. During World War II, the United States, with no regard to the Constitution, imprisoned 120,000 people of Japanese ancestry, 62 percent of whom were American citizens. We need to be reminded of this and to know some of the ugly details.

In recent years we have also seen the corrosive effects of overreaction. After 9/11, lawyers in the White House and the Department of Justice came up with dubious legal justifications for a vast expansion of the government=s power in waging war on terror. As part of that process , ... the United States sanctioned government officials to physically and psychologically torment U.S.-held captives making torture the official law of the land in all but name. Arthur Schlesinger Jr. commented: AThe Bush administration's extralegal counterterrorism program presented the most dramatic, sustained, and radical challenge to the rule of law in American history. An alternative legal system was created following rules of the executive branch's own devising. The Convention Against Torture, which the United States signed in 1988 and ratified in 1994, prohibits cruel, inhuman and degrading treatment, but the Bush legal team, particularly under the direction of David Addington (Vice President Chaney's legal counsel) and John Yoo (Deputy Chief in the Justice Department's Office of Legal Counsel), concluded that these categories did not apply to the Central Intelligence Agency. In 2003 Alberto Mora, then General Counsel of the Navy, thought that John Yoo's legal opinion justifying acts amounting to torture displayed Acatastrophically poor legal reasoning [which] approached the level of the notorious Supreme Court decision in Korematsu. Torture, which was reviled as a depraved vestige of primitive cultures before September 11, seemed in danger of becoming normalized. By 2008, Germany and the European Union had accused the United States of violating internationally accepted standards for humane treatment and due process. The four detainee cases, discussed infra, dealt with aspects of this policy.

  • Korematsu,
  • detainee cases,
  • torture,
  • Earl Warren
Publication Date
August 29, 2008
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