Even when everyone knows and admits that the U.S. Government abducted a totally innocent person and shipped him off to Syria to be tortured, American federal judges shut the courthouse door in his face, accepting the claims of the Bush and Obama DOJs that to allow the victim to obtain justice for what was done to him would be to risk the disclosure of vital “state secrets.” They accepted this Kafkaesque secrecy claim even after the Government of Canada published to the world a comprehensive report detailing what happened to Arar.
This was but one of the most extreme expressions of this post-9/11 trend of federal court abdication when it comes to Muslims. Time and again, federal judges have exhibited severe amounts of deference and bias when faced with Muslim defendants accused of some connection to Terrorism. For that reason, to be Muslim and accused of Terrorism-related crimes by the U.S. Government — no matter how tenuous the connection is, how dubious the allegations are, how devoid the allegations are of any violent acts, how entrapped the defendant was by the FBI — has become a virtual guarantor of being convicted and sentenced to decades in prison: and not just any prison, but inhumane dungeons like the SuperMax at Florence, Colorado or the CMU unit at Terre Haute, Indiana (aka “GITMO North“): among the worst prison hell-holes ever designed.
When it comes to shielding grave War on Terror crimes from all accountability, most critics have focused — rightfully so — on President Obama’s decree that even Bush-era torturers should not be subjected to criminal investigation. But that’s been only one of the many ways that the Obama administration has entrenched the consummately dangerous principle that even the most notorious crimes are beyond the reach of the law when committed by high-level government officials. But none of those ignominious efforts would succeed if the U.S. federal judiciary had even a fraction of the courage and integrity which the Founders envisioned life-tenured judges would exercise.
The central role played by federal judges in this full-on assault on legal equality and the Constitution when it comes to Muslim litigants and the War on Terror is often neglected. That’s because lawyers are in the best position to tell the story, but are often prevented — by their need to continue practicing before these judges and by formal disciplinary constraints – from publicizing the bad behavior of judges. Those factors, by design, operate to shield federal judges from scrutiny and critique. But no history of anti-Muslim hysteria, bigotry and legal oppression in the War on Terror will be complete without including the key enabling role they have played.