I am growing increasingly convinced that the cardinal challenge of our time is the defense of the rule of law and a culture of liberty against the culture of outrage and fear. And when even the most historically respected and presently influential publications publish reckless attacks on due process and dangerous calls for personal confrontation, that challenge grows more acute.
Over the weekend, the New York Times ran an inflammatory and irresponsible op-ed by human-rights professor Kate Cronin-Furman urging a direct attack on America’s constitutional order. She makes three primary points. First, that the “harsh conditions” at border detention facilities represent a “mass atrocity” because they’re a “deliberate, systematic attack on civilians.” Second, that under those circumstances public officials responsible for border conditions should be denied an effective legal defense. And third, that Customs and Border Protection agents who staff detention facilities should be publicly named and shamed, “particularly in their home communities.”
Cronin-Furman is comprehensively, systematically wrong. It is odd indeed that the Times published an essay accusing the administration of a “mass atrocity” two days after Congress passed a $4.6 billion bill by overwhelming bipartisan margins to fund aid for migrant children at the border. That’s how a functioning democracy responds to a crisis.
In fact, the unfolding response to the conditions at the border shows exactly how civil liberties and constitutional governance work together to ameliorate genuine crises. The Department of Homeland Security has been hit with an immense wave of illegal entrants. From January to May, total border apprehensions almost tripled, the number of unaccompanied minors more than doubled, and the number of family units more than tripled. In short, the system was overwhelmed.
That’s where civil liberties kick in — the free press reported on the emerging crisis in border conditions, and our nation’s independent courts hold the administration accountable to the rule of law. Don’t forget that public outcry (due in large part to media reporting) caused the administration to end its loathsome practice of family separation, and federal courts enjoined the practice and ordered family reunification.
Constitutional governance is still working. Conditions in detention facilities are subject to ongoing litigation, and public outcry (again, due in large part to media reporting) has led Congress to move with such speed to pass its most recent bill that the Washington Post ran a piece entitled “How did Congress pass humanitarian aid for migrant children so quickly?”
So no, there is no “mass atrocity” underway. But hyperbole was the least offensive aspect of Cronin-Furman’s essay. She actually wrote that “the American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession.”
It’s fascinating to see someone believe that the public can ascertain and allocate individual responsibility without due process. Accused murderers, rapists, and thieves are entitled to legal representation — even free representation — but public officials tasked with managing complex systems in the midst of a humanitarian crisis are on their own?
It would be easier to claim that Cronin-Furman’s argument is an absurd outlier if not for other actions of the illiberal Left that seemed designed to punish lawyers for representing the wrong kind of clients. Just last month Harvard University fired law professor Ronald Sullivan from his position as faculty dean of one of Harvard’s residential colleges. His crime? Representing Harvey Weinstein as Weinstein faces rape charges in Manhattan.
So how does one allocate legal and moral responsibility in the absence of due process? Cronin-Furman has the answer — mob rule. Activist lawyers and journalists should publish names and photos of Border Patrol agents, and their “actions should be publicized, particularly in their home communities.”
This isn’t an argument for doxxing, she says. She just wants you shamed at church. This argument — repugnant even in more temperate times — is made even more reprehensible by the terrible mistakes of the recent social-media past. Remember the horrific early reporting of the infamous Covington Catholic incident, where a misleading viral video led to one of the most vicious and misguided public-shaming incidents in recent memory?
Or if we’re speaking of the immigration context, the online mob has repeatedly blamed the Trump administration for incidents and images that date back to the Obama administration.
The challenge on the American border is immense, and fair-minded observers should not excuse the multiple failures of successive administrations to deal properly with the surge both of illegal immigration and of illegal immigrant children. The government must run detention facilities, and it must make them humane. It must treat detainees with humanity and dignity. Those are nondelegable duties, and failures to meet those obligations should be handled according to the dictates of law.
Our nation does not face a crisis (either on the southern border or in Washington) that the tools of liberal democracy cannot handle. Public protest still does spur social change. Courts can still compel the executive branch to follow the Constitution. Even Congress can still act decisively, as it did last week.
But if activists try to blast apart due process — or if they engage in aggressive public confrontations that can lead to violence — then they are working against the very democracy they claim they’re saving. Hyperbole leads to hysteria, hysteria leads to mob action, and mob action can and does lead to violence.
It’s sad to see the New York Times lend its platform to an argument that so brazenly undermines core American values. The tide of illiberalism rises, and our elite institutions are contributing to its dangerous surge.
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