I can’t begin to stress the effects a pandemic and its subsequent quarantine can have on the human psyche, especially when the presupposed and self-appointed guardians of the collective intellect, say, the Wall Street Journal editorial board, come up with such headlines. It has been hours of disbelief. Understand: there are much important legal issues at hands, like the surge of the conflict in Afghanistan reaching horrific heights, or the human rights issues posed by health emergencies worldwide.
And yet, we are now bestowed with Elon Musk, of all people, to be the guardian of the United States’ leading civil rights organization. I have previously expressed some discrepancies in opinion with the ACLU, regarding their stance on free speech and their tenacity in litigating abortion bans. Those were legal debates worth being had (or at least, so I believe) and which continuity can only benefit the civil and human rights legal community. Deciding to appoint a somewhat brusque, politically unfit, and erratic billionaire at the helm of one of the only institutions not destroyed by the Trump administration is completely irresponsible. It’s also probably extremely symptomatic of the times we are living in.
The argument was that Elon Musk believes in governmental scrutiny, which is such a low standard for any citizen that planting them as the new figurehead for civil rights is not a stretch, it’s a quantum leap. It is entirely based on the survival of TESLA’s capitalist structure, as explained:
That Elon Musk’s resistance of California’s pandemic shutdown may well be due to fear that his company cannot survive if it doesn’t continue pulling in cash from delivering cars merely gives him material and compelling justification for his defiance. He should protect his company’s right to do business and survive against what he considers unlawful and unjustified prohibitions. He would be derelict not to do so.
There is so much to unpack from this single paragraph, but the use of the term “unlawful” has triggered many lawyers before this one, and as we are all struggling to balance positive and negative legal obligations resting upon states from both international and domestic legislation. The fact that Elon Musk just refuses to abide by public health regulation is reactionary at best, dangerous at most. Using the term “derelict” is uncalled for: Elon Musk has duties toward his employees and toward his trustees; that is correct. One of those duties is the right to safety. Granted, the ACLU did state from the very beginning of both state and federal regulation – which, in the United States, wasn’t that long ago compared to the effective danger posed by the pandemic– that they would scrutinize measures enacted in order to confine, restrict, and protect so they would not exceed legal boundaries; it was their mere statement of purpose. We have all been called upon our legal duty to review measures, especially when those veered into the arena of emergency, in order to ensure human rights protection.
But here’s the thing about public health. It’s also a human right. Before calling the state of California’s measures “unlawful”, a judicial review should be conducted, and this is not what this article, once again published by a member of the editorial board, has performed. Expertise be damned, the article now takes a scientific turn: something that is required given the circumstances; I myself have called for deeper interdisciplinary output in order to provide guidance that would be both lawful and safe. But the Wall Street Journal continues in what is frankly baffling and has been denounced left, right, and center:
A writer in the Atlantic suggests conservatives favor opening the economy and want the old and ill to take one for the team. My own email indicates dissent from the lockdowns has nothing to do with being a conservative and a lot to do with being a physician or immunologist. By focusing protection on the elderly and vulnerable, we bring closer the day when the elderly and vulnerable won’t need protecting because the epidemic has run out of a critical mass of people to infect. An unusually sensible (sic) writer in the New York Times points out that pandemics in the past have ended not with the virus going away – the 1918, 1957 and 1968 strains are still with us. They ended when people decided to accept and adapt to the virus’ existence.
None of this is backed up by the aforementioned physicians or immunologists, let alone those with experience dealing with pandemics. If the author wants to ensure that there is no risk of those claims being ideological and instead base his argument on the logic of human management of natural events, he would do best to take a look at how those events were managed in order to mitigate and respect the rights that had been enacted after 1918, as opposed to claiming that “live and let die” was a perfectly acceptable motto.
There are, of course, issues with regulations that have been enacted in response to the pandemic, to the point that the Office of the High Commissioner for Human Rights (OHCHR) has dedicated specific research and pages to monitoring the situation, from states of emergency to restriction on movement, suspension of asylum rights, exercise of statutory police powers, the status of the incarcerated, domestic violence, and access to health in non-covid related areas. There are plenty more, but the author of that piece is not concerned with the damage that this virus has caused globally – the loss of lives, the loss of certain freedoms, the loss of an idea of a normalcy that was never truly one in the first place – he is concerned with TESLA’s bottom line. Let me be clear: TESLA is not a small business in New York City. Its survival is not really questioned. Its role in the community is minimal. It should not be on the list of priorities for an eventual bailout from the state governor or federal authorities to ensure that the loss of income from what can only be described as an act of god. The idea that private funds – billionaires, bar Warren Buffet perhaps, are not the saviors some seem to believe they are – are more important than human lives is not just horrific, it’s cynicism that can only be derived from an ideology based on a dark version of Darwinism.
We have a duty to protect the vulnerable. But the vulnerable are not necessarily those the author thinks about. Yes, there are individuals with underlying conditions that would make an infection by this virus, or any other, seriously at risk, but the virus has also affected people without said conditions, and has led them to the ICU. There is still no consensus as to whether having contracted the disease means one is immune to a potential re-exposure. The reason why those strains are still with us but have been downgraded in the severity of their status by the World Health Organisation (WHO) is the existence of vaccines. Because the right to health is a human right.
Yesterday, doing a webinar organized by the Human Rights Lawyers Association (HRLA), based in London, several human rights issues were raised by the panelists, including over-policing, the situation of overcrowding and impossibility of social distancing in prisons and immigration detention, as well as the privacy issues surrounding contact-tracing. All of this is within the purview of the ACLU. All of this needs to be monitored, for two reasons, on which the delicate element of assessment of lawfulness rests:
- The right to health, safety, security, and life, as well as the prohibition of cruel and unusual treatment that can be raised if states do not take measures to protect individuals from contamination and, in the case it has not been made aware – that can only be assessed in hindsight – of any contamination, regulated in order to mitigate. Michael Etienne, a barrister at No 5 Chambers in London, was examining possible violations of Article 2 and Article 3 ECHR in England with regards to the issues of care homes and other facilities in which individuals are under the care of the state and were not provided with enough equipment. That can be extended to any essential worker that has been knowingly exposed to the virus;
- The right to freedom of movement, the right to work, and the right to family life, as well as the right to privacy in implementing contact tracing, a standard operating procedure in the management of pandemics, so as to remove third party use of health data and its storage post pandemic, or for government use that is a digression from the purpose of maintaining public health.
We are talking about public health. And if the author believes that the Spanish influenza or, for that matter, the black plague was just a perfectly acceptable way to thin the herd and only those with antibodies that miraculously managed to survive what decimated empires deserve to remain citizens of the United States, home of the free and land of the brave, I would suggest he tries that speech with any and all of his loved ones, who are at just as much risk. I am comparing this piece with the fresh mass graves dug in my city of New York and I find the disregard for livelihoods and the detachment from empathy in situations of grave danger, that none could have foreseen, with the same form of horror I would an active shooter in a schoolyard.
The author concludes,
That politicians took steps out of panic is understandable.
It is not.
That these steps were unjustified by the science that existed then much less now doesn’t mean their motives were bad.
The steps were usually guided by the 2005 International Health Regulations.
We can accept, especially in a panic, that the media will eschew complexity in favor of a story of an enemy that must be vanquished.
As much as I want to fight that the belligerent rhetoric that has been pushed, no less by French president Emmanuel Macron stating “we are at war” six times in a twenty-two minutes address announcing the national lockdown, needs to be addressed, I would be curious what this particular media would push in terms of headlines following a terror attack, a time during which the media does eschew complexity in favour of instating a climate of fear against an enemy that must be vanquished (“Mission accomplished!”, they would gleefully claim, six months later, when nothing has changed.).
Our country and our Constitution are finished, however, if the most sweeping, authoritarian and undemocratic restrictions on individual liberty ever contemplated are not subjected to legal challenge and accountability.
Where was this line when the Patriot Act was voted unanimously but for the lone voice of Representative Barbara Lee, who was then accused of being a traitor to her nation? I would look into archives, but I’m quite confident that nothing as strongly worded as this had ever occurred during the establishment of rendition, the legalization of torture, the overseas detention of combatants outside the laws of war, the mass surveillance, and constant conflict that has marred the United States constitution – without even the beginning of a hope for a 9/11 trial – in nineteen years.
Yet the Wall Street Journal just can’t sleep at night because public health requires them to relinquish a fraction of their privilege for a short amount of time. This is not what the ACLU stands for; in fact, the ACLU would likely challenge in court the premature re-opening of states should contamination rates spike, especially in a country that has no access to health care, once again, a human right, something an opinion writer would consider unlawful. Alas, this is not what ideology dictates, and human rights have been washed down the drain in one opinion piece I hope will never last the test of time and will be long forgotten in the post-pandemic world, when my colleagues and I will have to indeed go to court try to fix the broken pieces of, on one hand, excess regulation and, on the other, the refusal to act according to the law.
But this is not the first time human rights are just inconvenient to some, is it?
Non Curat Lex 