The once strong and proud Lady Justice, protector of human rights and civil liberties, has herself become a victim and her moral voice has been muted. She’s been bound and gagged (by the Patriot Act) and some government officials are trying to lock her in history’s basement. Two cases are indicative of Lady Justice’s peril.
First, in 2002, Maher Arar a Syrian-born Canadian citizen was abducted by the U.S. government on false information from the Royal Canadian Mounted Police that he was a terrorist. The United States held Arar for 12 days before handing him over to Syria, even though Syria has been listed as a state sponsor of terrorism by the U.S. since 1979 and the U.S. knew that the torture of Mr. Arar was very likely. In Syria, Mr. Arar was tortured and kept in a grave-like cell for over 10 months.
Since his extraordinary rendition, the Canadian government has apologized and awarded Mr. Arar $10 million for their part in his regrettable incident. However, earlier this year the 2nd U.S. Circuit Court of Appeals ruled that Maher Arar could not sue the U.S. for the rendition and torture that he experienced.
In the second case, Curtis W. McGhee Jr. and Terry Harrington were convicted of murdering a retired Council Bluffs police officer in 1978. They both received life sentences for the murder of which they served 25 years. It turns out that they were wrongly convicted.
It is not uncommon for people to be convicted of crimes they have not committed. What makes this case different is the misconduct of prosecutors that resulted in this conviction. The prosecutors actually manufactured evidence against the two defendants. They coerced and coached a 16-year-old who falsely testified against McGhee and Harrington.
The High Court now must decide if immunity from being sued for prosecutors is absolute in Pottawatomie County vs. McGhee. Deputy Solicitor General Katyal argued that there is no “free-standing due process right not to be framed”. What seems like a no-brainer, protection from the government by the constitution and the bill of rights, may be severely diminished. Earlier this year the Supreme Court unanimously expanded prosecutorial immunity.
Holding governments accountable for targeting ordinary citizens is for the civil courts. This allows individuals who have been wronged by our government to have their day in court and receive some remedy for the injustices committed against them. Without these protections in place the U.S. is on the same footing as governments such as Syria, the former Soviet Union and North Korea.
Whether Lady Justice will regain her role as the protector of all, will also determine whether her moral voice returns. From time to time Lady Justice has been in danger of being lost and yet she has proven to be resilient. However, the U.S. Supreme Court must immediately mount a rescue mission.