This article might help understand the judgement of Dr Aafia's case

AMERICAN JURISPRUDENCE UNDER THE STRESS
OF FEARS AND PREJUDICES

Hamid Khan
Former President
Pakistan Supreme Court Bar Association


After 11th September, 2001, the World has witnessed overbearing attitude of American Government towards the citizens of other countries particularly those from the Muslim countries. The aliens living in the United States, particularly Muslims, have been targeted and subjected to humiliating searches at the airports and other points of entry. The persons with Muslim names and Arab looks traveling on the domestic fights in the U.S.A. are repeatedly body searched and their baggages are opened time and again for search. The persons arrested in Afghanistan who were suspected to be terrorists belonging to Al-Qaida or Taliban organizations were transported to Guantanamo Bay, Cuba in most inhuman and unbearable conditions reminiscent of the days of transportation of slaves from Africa to the American continent. At Guantanamo, these prisoners, may of whom have been found innocent after months of confinement, are kept in most inhuman and appalling conditions. They have been housed in very small cells where a man cannot even stretch himself, they are shackled in chains and have been reportedly tortured. The aliens, mostly from Muslims countries, are required to register themselves with the Immigration and Naturalization Service (INS). The registration process includes being photographed from front and side profiles, finger printed and obtaining other personal details that would be stored in a data bank. In this process, many Pakistanis and Arabs have been detained and are likely to be deported.

It is indeed shocking to many, particularly the members of Muslim Countries and their Westernized elites, who genuinely believed the USA as leader of the free World and champion of human rights and civil liberties. Various American Governments had lectured other countries on human rights and civil liberties and censured those with a record of abuse of such rights and liberties. How come all of a sudden the American Administration is itself abusing the human rights and civil liberties of others and so blatantly? Why the Congress, which had always projected itself as a model legislature for the World and upholder of the human rights and civil liberties through legislation, has failed to check such abuses and has rather itself became party to such abuse by enactment of draconian laws? Why has the congress conferred unfettered and excessive powers on the executive authorities on the pretext of conducting war on terrorism? Why has the common American acquiesced to abuses of human rights and civil liberties. Why the public opinion in the United States has been so pliable and susceptible to the propaganda war waged by the Administration?

It is in this scenario that it needs to be considered if there is any remedy available in the court system of the United States for the beleaguered Muslims residing in the United States or detained in the detention camp at the Guantanamo Bay. The discussion on this matter would necessarily involve the third organ of the state in the U.S.A., that is, judiciary. The matter is issue would be: Do the American Courts protect individuals against abuses of human rights and civil liberties in times of national fear or acute national prejudices? If such abuses are challenged before the U.S. Courts, what kind of verdicts could be expected? Would it live to their reputation of judicial activism or would it bend its doctrines to provide legal justification to such abuses? Let us discuss and analyses the record of the American judiciary and jurisprudence in protecting human rights and civil liberties in difficult times in the historical context.

The American Constitution is the first written democratic Constitution in the World. It contained a comprehensive bill of rights in the first nine amendments which included amongst others the freedoms of religion, assembly, speech and press; the rights of life, liberty and property; freedom to bear arms and right of trial by jury. All these rights existed in some form or the other in Britain before they were formally recorded in the American Constitution. However, in addition to these, the American Constitution extended to its citizens and residents two basic democratic safeguards expressed as doctrines of ‘due process of law’ and ‘equal protection of the laws’. The American jurisprudence developed these concepts through interpretation by the U.S. Supreme Court and built them up as vanguards of liberal democracy and protectors of basic human rights and liberties.

The American Courts have jealously guarded these rights over the last more than two centuries. Under the concept of ‘substantive due process’, the fairness of a law is judged by the courts much as it would be by a legislature. The concept of ‘procedural due process’ broadly provides for adequate opportunity to answer the allegations and fair trial according to settled course of judicial proceedings. The concept of ‘equal protection of laws’ means that no person should be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property and pursuit of happiness. The guiding principle most often stated by the courts is that this constitutional guarantee requires that all persons should be treated alike under like circumstances and conditions.

These great concepts have helped United States build a just, tolerant and democratic society. These concepts have been adopted by other countries particularly those freed from colonial rule, in their own written constitutions. The judgments given by the U.S. Supreme Court elaborating these concepts have enabled the citizens to lead meaningful lives and enjoy true liberty. The superior Courts in many countries, particularly after the Second World War, have followed the reasoning and rationale of the judgments of the U.S. Supreme Court in constitutional matters. Nevertheless, it would be useful to examine if interpretation of laws pertaining to fundamental rights and civil liberties by the U.S. Supreme Court has been consistent throughout its history.

In the first half century after independence, slavery emerged as the most important legal issue in the context of the Bill of Rights and the contemporary politico-socio-economic scenario in the U.S.A. It became a divisive issue particularly between the northern industrialized states that had little use for the Negro slave labour and the southern agriculturist states largely dependent upon the Negro slave labour. Ultimately this issue of individual freedom as against the right of property of slave owners was tested in the case of ‘Dred Scott v. Sanford’ [15 L.Ed. 691 (1857)]. At the time when the U.S. Supreme Court deliberated over the Dred Scott case, a bitter controversy was building up in the country as a divisive political issue between slavery and antislavery forces that later led to civil was in 1861. Scott was a slave when his owner took him from the slave state of Missouri into the free state of Illinois under the Missouri Compromise of 1820 passed by the U.S. Congress. Scott claimed that when he was taken to Illinois, his status had automatically changed from slave to a free person. When he was taken back to Missouri by his owner he sued in Missouri State Court that he be declared a free man. The case ultimately reached the U.S. Supreme Court, which decided it in 1857 in favour of the slave owner whose right of property was upheld. The Court was swayed by the prevalent racial prejudices particularly because it had a majority of judges from the Southern states which favoured slavery. The following passages from this judgment reflect the prevailing prejudice against the Negro race that had overwhelmed the minds of the judges in the highest Court regardless of the fundamental rights conferred by the Constitution.

“In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”

“They had far more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concerns, without doubting for a moment the correctness of this opinion.”

“And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.”

“The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a Negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different Colonies, as slave labour was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.”

The slavery was abolished under the Constitution (under Thirteenth, Fourteenth and Fifteenth Amendments) after the American civil war but the innate racial prejudices amongst the members of the white race of being superior persisted. Thus, the requirement of ‘equal protection of laws’ under the Fourteenth Amendment was circumvented by introducing segregation on racial lines in the railroad trains, public schools, public parks and other public facilities. A Louisiana law of 1890 required “equal but separate accommodations” for white and black railroad passengers. Plessy, a Negro, who had refused to vacate a seat in a coach reserved for whites but was removed forcibly therefrom challenged the constitutionality of the law on the ground that it denied him equal protection. The judgment of the U.S. Supreme Court in the case ‘Plessy v. Ferguson’ [163 U.S. 537 (1896)] upheld the Louisiana law as reasonable exercise of state police power and not violative of ‘equal protection of laws’ clause of the Constitution. The following passages of the majority opinion of the Court would reflect racial prejudice of the judges though expressed in much more muffled and temperate words than was the case with Scott judgment:

“We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

“The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals….. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place…..”

Even the famous dissenting opinion of Justice Harlan in this case was not free from racial overtones as is apparent from the following extract:

“The white race deems itself to be the dominant race in the country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So I doubt not that it will continue to be for all times, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizen. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

It took nearly sixty years for the U.S. Supreme Court to dispense with the ‘separate but equal’ doctrine in the case of “Brown v. Board of Education” [347 U.S. 483 (1954)] and to agree with the opinion of justice Harlan in Plessy case.

The American jurisprudence has not been entirely free of religious prejudice, which found expression in the case against religious practices of Mormons despite freedom of religions guaranteed under the First Amendment to the Constitution. The Mormons is a Christian sect of latter day saint introduced by Joseph Smith from upstate New York who had proclaimed himself as prophet in 1827. The Christians in the U.S.A. felt alarmed and thought that the faith of Mormons would contaminate christianity. Thus the Mormons faced persecution throughout U.S.A. during the nineteenth century. They practiced polygamy, which was declared a crime under a federal law. The U.S. Supreme Court in ‘Reynolds v. United States’ [98 U.S. 145 (1890)] declared that polygamy had been traditionally condemned and that “it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life”.

Apart from the prejudices overwhelming the judgment of the people and Courts of the U.S.A. at critical junctures of its history, the fears and insecurity of American people at various points in time have also hampered the American jurisprudence in its development and manifestation. The freedom of speech and press, constitutionally ordained under the First Amendment to the Constitution, have always been regarded sacrosanct by the Americans. However, during difficult times, particularly when United States was at war, these freedoms were negated by controversial construction placed on these freedoms by the U.S. Supreme Court. When the United States entered the First World War in 1917, it passed the Espionage Act of 1917 which provided for punishment for making reports or statements with intent to interfere with the operation and success of the military or naval forces of United States or for obstructing the recruitment of enlistment in armed forces. Schenck was convicted for violating the Espionage Act because he had been distributing circulars persuading draftees (conscripts) to refuse induction. His conviction was upheld in ‘Schenck v. United States’ [249 U.S. 47 (1919)] despite the plea of stringent protection of free speech. The Court held that the protection of free speech did not extend when ‘the words used are used in such circumstances and are of such a nature as to create a clear and present danger. The doctrine of ‘clear and present danger’ was applied to other cases pertaining to dissemination of written materials opposed to participation in or conduct of war by the United States.

After the end of the first World War, Americans felt alarmed by spread of communism in Russia and other European countries and the American Government took measures to contain it in the American Continent. In this process, the rights of free speech and press once again came under serious strain. Anita Whitney was involved in organizing the Communist Labour Party and as a delegate to a party convention had supported a resolution that advocated political action to being about political change in the United States. She was tried and convicted under the California Criminal Syndicalism Act which made it a crime to advocate, teach and aid the commission of crime, sabotage, unlawful acts of force, violence or terrorism to bring about change in industrial ownership or control or to effect any political change. Despite the fact that Whitney had only favoured political action through democratic means to advance communism, her conviction was upheld by the U.S. Supreme Court in ‘Whitney v. California’ [274 U.S. 357 (1927)]. The reasoning of the court is reflective of the fear of communism prevailing at the time, as expressed in the following passage:

“That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and that a State in the exercise of its police power may punish those who abuse its freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized Government and threaten its overthrow by unlawful means, is not open to question.”

After the Second World War, there was widespread fear and insecurity prevailing amongst the people in the United States due to emergence of the Soviet Union as a super power. Dennis and his associates were convicted in July 1948 under the conspiracy provisions of the Smith Act, 1940. The U.S. Supreme Court upheld the convictions in ‘Dennis v. United States’ [341 U.S. 494 (1951)] holding that the Smith Act did not inherently violate the first Amendment and other provisions of the Bill of Rights. The conspiracy of Dennis and his associates to organize the Communist Party and teach and advocate the overthrow of the government of the United States by force and violence created a ‘clear and present danger’. The dictum in Dennis case is indicative of the times when the Courts in United States had capitulated to the frenzy of fear of communism generated in the post Second world War period specially between 1945 and 1960. This environment of fear was fully exploited by bigots like Senator McCarthy at that time to victimize their opponents in the cold war against communism.

The internment of American citizens of Japanese ancestry and their exclusionary orders by the military authorities during the Second World War are indicative of the fear and anxiety of the Americans under the strain of war and the American Courts were no exception under such trying circumstances. On February 19, 1942, President Roosevelt issued an executive order authorizing the Secretary of War and the military Commanders to take steps to enforce compliance with the restrictions applicable to military areas. The Congress passed legislation on March 21, 1942 that substantially embodied the provisions of the President’s sweeping executive order. On May 3, 1942, General De Witt issued Civilian Exclusion Order No.34 which provided that “All persons of Japanese ancestry, both alien or non-alien, be excluded from….. military Area No.1”, which was described as containing the coastal area of northern California around San Francisco. Korematsu, an American citizen of Japanese ancestry, was convicted for violating the Exclusion Order No.34 and his conviction was upheld by the Federal Circuit Court. He petitioned the U.S. Supreme Court in bold and provocative terms reproduced as under:

“Can a loyal American citizen be branded a criminal under the provisions of Public Law No.503 of the Act of March 21, 1942, for resisting military letters de cachet, issued in an area free from martial rule, which commanded his seizure, removal from his home, detention in a stockade, banishment from a state-embracing military department, and final imprisonment in a concentration camp, all without trial and without accusation of crime being brought against him.”

The Supreme Court in “Korematsu v. United States” [323 U.S. 214 (1944)] upheld the conviction and stress of war on the American jurisprudence is obvious from the following extracts of the judgment:

“True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage.

“Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.

“We uphold the exclusion order as of the time it was made and when the petitioner violated it….. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens….. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war burden is always heavier. Compulsory exclusion of large group of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent without basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”

The Korematsu case manifests extremely perverse legal formulation providing for punishment of all members of a group because some of them might be involved in undesirable activities. This case has been a major embarrassment to all branches of Government of the United States after the Second World War and some of the innocent victims who suffered internment in the concentration camps have been compensated in 1990s (after about fifty years or so). However, the rationale in Korematsu case has once again came alive in the recent treatment of suspected class of aliens. Can the affected persons expect a verdict different from Korematsu case from the American Courts in the environment that exists today in the United States? It would be highly unlikely.

From the study of the above mentioned cases decided during the times of war, extreme anxiety or national fear and prejudice, it is evident that all branches of American Government including the courts wilt under such trying times. The American psyche is susceptible to fears and prejudices; whether or not they are product of internal economic compulsions like slavery or communism; or external threat like war or internal commotion. Once such fears get into the national psyche, all branches of Government including the judiciary bend their rules and misconstrue their own settled doctrines to justify breach of human rights and civil liberties. The veneer of liberalism gets rubbed off in such difficult times and exceptions are created to the established legal principles and new legal doctrines are advanced to undermine the human rights and civil liberties at the alter of national danger. The bitter truth about the history of American jurisprudence is that the Courts in times of war and internal commotion fall in line with the policies of the Administration and the Congress, which policies are dictated by fears and prejudices. In this perspective the aliens labouring under the discriminating policies of the Bush Administration should not expect relief or redress from the American Courts particularly in these times when the Administration has whipped up frenzy in the name of ‘war on terrorism’ against Muslim residents. The Muslims (whether or not residents in the U.S.A.) are victims of the hostile feeling created by sentiments of fears and prejudices amongst the Americans. The American Courts are no exception to these sentiments.
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