Fungible Convictions

I’m fundamentally in agreement with professed ACLU aims, but my view of it as an organization is a bit more negative, particularly after going to a Mass. ACLU meeting a while back and leaving early with another person with whom I shared the glazed over reaction that wordlessly says “Wow, what nuts!” It didn’t help that one of the attendees was a guy that we ban from MIT events because he habitually asks 20 minute questions during Q&A.

ACLU lawyers—and libertarian lawyers along with them—have a particular panache I love, though, and I’ll support them so long as they use it. Namely, they’re able to identify and eviscerate legal absurdities. One that they laid low today was the U.S. government’s argument that it should be allowed to withhold evidence of prisoner abuse on the grounds, in part, that that evidence’s release would embolden America’s enemies. From the Washington Independent’s story on the ACLU’s argument:

“No court has ever upheld the suppression of descriptions of government misconduct on the ground that those descriptions would inflame the nation’s enemies,” writes the ACLU lawyers in their brief filed today. “To do so would enshrine into the [Freedom of Information Act] the fundamentally antidemocratic principle that the more egregious the government misconduct at issue, the more protected it would be from public disclosure.” A law enacted “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” writes the ACLU, citing the Supreme Court, would thus be “transformed into an instrument of cover-up.”

And with that, any federal judge hearing this and similar future cases should have no doubt that the law’s letter and spirit demands releasing evidence of abuse, no matter how damaging to the government. For if we’re not a nation of laws, what are we even protecting through torture? Life, you might respond. We torture to protect lives. Our government-sanctioned torturers were thinking of protecting their fellow citizens and their families when they did what they certainly didn’t want to do, you might say. Be that as it may, the law tops it all. Why, after all, did we fight the Revolution or the Civil War or the two World Wars—to demand and defend laws. Our countrymen laid down lives because we believed in laws and their equal, just application. Closet totalitarians in this country like to point out that “life” comes before “liberty” in the Declaration of Independence. But the thriving of both presupposes law.

So, really, it’s time to release those transcripts.