Wednesday, April 16, 2008
Posted by Alan Childress
Recently posted to SSRN, and Bill Henderson's journal there on 'law and society: the legal profession,' is Ariel Meyerstein, "The Law and Lawyers as Enemy Combatants," also published in 18 University of Florida Journal of Law & Public Policy 299. Ariel Meyerstein (left) is currently clerking for the Ninth Circuit, is a JD graduate of Boalt, and is a.b.d. from Berkeley's PhD program in Jurisprudence & Social Policy. Here is the abstract:
This article contextualizes the Senate debates leading to the passage of the Detainee Treatment Act of 2005 (DTA) within broader American cultural narratives about the law and lawyers' roles in society. This linguistic and cultural analysis describes elements of the DTA and the broader legal regime created in the aftermath of 9/11 that have subverted once-sacrosanct ideals, including the rule of law and basic procedural fairness, as merely the latest and most extreme of similar measures adopted over the last two decades to combat the spread of rights and access to justice. The "enemy combatant" is shown to be one in a line of dominant cultural images or metaphors, including the "conniving claimant" and "predator lawyers," all of which are products of what Marc Galanter long ago identified as the "jaundiced view of the law": a perspective on law and lawyers that portrays them as undermining, rather than upholding and protecting, the core values of our society, and in the process, weakening our resolve and national strength.
The article concludes by proposing that the emergence of the "enemy combatant" as a new "governmentality," or new political construct by which political power is organized and asserted, threatens not only those most immediately in danger, such as non-citizens and aliens, but also those previously thought to be safe from such an emaciation of rights and legal protections.