I felt a surge of shame earlier this week when I read an account of the 5-to-4 U.S. Supreme Court decision authorizing prison officials to strip-search any of the 13 million people arrested every year. The case was brought by Albert W. Florence, who had been mistakenly arrested for failing to pay a court fine which he had, in fact, paid — and then was forced to squat naked and cough in front of guards. The infraction could have been even flimsier: Justice Stephen Breyer pointed out that one person had been subjected to this humiliating invasion of privacy after "riding a bicycle without an audible bell." Justice Anthony Kennedy, who wrote the majority decision, rebutted this objection by noting that "people detained for minor offenses can turn out to be the most devious and dangerous criminals."
Florence was not, of course, a suspected terrorist, but the case was a reminder of how America's crackdown on crime over the last generation has converged with the atmosphere of fear and suspicion produced by 9/11 to make the United States a terribly harsh and forbidding place for anyone who falls afoul of the law. Indeed, the Washington Post notedthat the court's decision "continued a trend that began after the Sept. 11, 2001 attacks of giving jailers more leeway in searching those picked up even for the most minor offenses." And Kennedy's reasoning — better to subject an entire population to degrading treatment than to overlook one dangerous actor — is precisely the logic that led the Bush administration to detain vast numbers of perfectly innocent people on suspicion of terrorist activity after 9/11, or to subject millions of visitors to the United States to an exhaustive grilling by customs officials lest a terrorist slip through the net.
As a candidate, Barack Obama insisted that the United States was paying a heavy reputational price for violating international standards of human rights. "We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary," he promisedin one campaign speech. Obama is not, of course, responsible for the Supreme Court's conservative majority, which carried the day on Florence. But he has not, with a few exceptions, changed the practices, or the underlying logic, that make the United States such an outlier in the West. Obama has not done nearly as much as he expected, and his supporters hoped, to restore the damage incurred by the Bush administration. This has been one of the great failures of his time in office.
I asked Alison Parker, director of U.S. programs for Human Rights Watch, how she graded the Obama administration on reforming abusive human rights practices at home. On criminal justice matters, she said, Obama deserves credit for reducing mandatory sentences for crimes involving crack cocaine, where the defendants are mostly black, which had been far longer than those for powder cocaine, where they are mostly white. On the treatment of immigrants, she said, "It's been mostly a steady state from what we experienced under Bush." And on counterterrorism, it's more mixed: The administration has banned torture; promised to end the practice of transferring prisoners captured on the battlefield to countries that might torture them (but is still relying on dubious official assurances from those allies); and has failed to close Guantánamo, end military tribunals, or prohibit indefinite detention. What's more, the Obama administration, like its predecessor, has refused to grant the U.N. Rapporteur on Torture access to Guantánamo. It would be a middling record, and perhaps defensible — if Obama hadn't promised such a decisive break.
There is of course no crisp answer, mathematical or metaphysical, to the question of how far the state may deprive an individual of his or her dignity, or even selfhood, in the name of protecting the larger community. But the balance in the United States is very different from what it is elsewhere in the West. The New York Times recently ran an eye-opening articlenoting that the United States has imposed solitary confinement on at least 25,000 prisoners, and perhaps many more, often for years or even decades at a time. And that doesn't even include Guantánamo, where some detainees are held in solitary for years on end.
