This brings me to the second aspect of our Constitutional crisis - that is, the
encroachment of our historical freedom from unreasonable searches and seizures. The
establishment of the new Office of Homeland Security and the passage of the so-called
USA Patriot Act has brought into being an unprecedented merger between the functions of
intelligence agencies and law enforcement. What this means might be clearer if we used
the more straightforward term for intelligence - that is, spying. Law enforcement agents
can now spy on us, "destabilizing" citizens not just non-citizens.
They can gather information with few checks or balances from the judiciary. Morton
Halperin, a defense expert who worked with the National Security Council under Henry
Kissinger, was quoted, in The New Yorker magazine, worrying that if a government
intelligence agency thinks you're under the control of a foreign government, "they can
wiretap you and never tell you, search your house and never tell you, break into your
home, copy your hard drive, and never tell you that they've done it." Moreover, says
Halperin, upon whose own phone Kissinger placed a tap, "Historically, the government has
often believed that anyone who is protesting government policy is doing it at the behest of
a foreign government and opened counterintelligence investigations of them."
This expansion of domestic spying highlights the distinction between punishing what has
already occurred and preventing what might happen in the future. In a very rough sense,
agencies like the FBI have been concerned with catching criminals who have already done
their dirty work, while agencies like the CIA have been involved in predicting or
manipulating future outcomes - activities of prior restraint, in other words, from which the
Constitution generally protects citizens.
The third and most distressing area of Constitutional concern has been Mr Bush's
issuance of an executive order setting up military tribunals that would deprive even
long-time resident aliens of the right to due process of law. The elements of the new order
are as straightforward as trains running on time. The President would have the military try
non-citizens suspected of terrorism in closed tribunals rather than courts. No requirement
of public charges, adequacy of counsel, usual rules of evidence, nor proof beyond a
reasonable doubt. The cases would be presented before unspecified judges, with rulings
based on the accusations of unidentified witnesses. The tribunals would have the power to
execute anyone so convicted, with no right of appeal. According to polls conducted by
National Public Radio, The Washington Post, and ABC News, approximately 65% of
Americans wholeheartedly endorse such measures.
"Foreign terrorists who commit war crimes against the United States, in my judgment, are
not entitled to and do not deserve the protections of the American Constitution," says
Attorney General John Ashcroft in defense of tribunals. There are a number of aspects of
that statement that ought to worry us. The reasoning is alarmingly circular in Ashcroft's
characterization of suspects who have not yet been convicted as "terrorists." It presumes
guilt before adjudication. Our system of innocent-until-proven-guilty is hardly foolproof, but
does provide an essential, base-line bulwark against the furious thirst for quick vengeance,
the carelessly deadly mistake - albeit in the name of self-protection.
It is worrisome, too, when the highest prosecutor in the land declares that war criminals
do not "deserve" basic constitutional protections. We confer due process not because
putative criminals are "deserving" recipients of rights-as-reward. Rights are not "earned" in
this way. What makes rights rights is that they ritualize the importance of solid, impartial
and public consensus before we take life or liberty from anyone, particularly those whom
we fear. We ritualize this process to make sure we don't allow the grief of great tragedies
to blind us with mob fury, inflamed judgments and uninformed reasoning. In any event,
Bush*s new order bypasses not only the American Constitution but the laws of most other
democratic nations. It exceeds the accepted conventions of most military courts. (I say all
this provisionally, given that the Bush administration is urging the enactment of similar
anti-terrorism measures in Britain, Russia, and that troublesome holdout, the European
Union).
As time has passed since the order was published, a number of popular defenses of
tribunals have emerged: we should trust our president, we should have faith in our
government, we are in a new world facing new kinds of enemies who have access to new
weapons of mass destruction. Assuming all this, we must wonder if this administration
also questions whether citizens who are thought to have committed heinous crimes
"deserve" the protections of American citizenship. The terrorist who mailed "aerosolized"
anthrax spores to various Senate offices is, according to the FBI, probably a lone
American microbiologist. Although we have not yet rounded up thousands of
microbiologists for questioning by the FBI, I wonder if the government will be hauling them
before tribunals - for if this is a war without national borders, the panicked logic of secret
trials will surely expand domestically rather than contract. A friend observes wryly that if
reasoning behind the order is that the perpetrators of mass death must be summarily
executed, then there are some CEOs in the tobacco industry who ought to be trembling in
their boots. Another friend who works with questions of reproductive choice notes more
grimly that that is exactly the reasoning used by those who assault and murder abortion
doctors.
"There are situations when you do need to presume guilt over innocence", one citizen from
Chattanooga told The New York Times. The conservative talk show host Mike Reagan
leads the pack in such boundlessly-presumed guilt by warning that you might think the
guy living next door is the most wonderful person in the world, you see him playing with
his children, but in fact "he might be part of a sleeper cell that wants to blow you away."
We forget, perhaps, that J. Edgar Hoover justified sabotaging Martin Luther King and the
"dangerous suspects" of that era with similar sentiment.
In addition to the paranoia generated, the importance of the right to adequate counsel has
been degraded. Attorney General Ashcroft's stated policies include allowing federal
officials to listen in on conversations between suspected terrorists and their lawyers. And
President Bush's military tribunals would not recognize the right of defendants to choose
their own lawyers. Again, there has been very little public opposition to such measures.
Rather, one hears many glib, racialized references to OJ Simpson - who, last anyone
heard, was still a citizen: "You wouldn't want Osama Bin Laden to have OJ's lawyer, or
they'd end up playing golf together in Florida."
The tribunals also challenge the right to a speedy, public and impartial trial. More than
1000 immigrants have been arrested and held, approximately 800 with no disclosure of
identities or location or charges against them. This is "frighteningly close to the practice of
disappearing people in Latin America," according to Kate Martin, the director of the Center
for National Security Studies.
Finally, there has been an ominous amount of public vilification of the constitutional right
against self-incrimination. Such a right is, in essence, a proscription against the literal
arm-twisting and leg pulling that might otherwise be necessary to physically compel
someone to testify when they do not want to. It is perhaps a rather too-subtly-worded
limitation of the use of torture.
While not yet the direct subject of official sanction, torture has suddenly gained
remarkable legitimacy. Callers to radio programs say that we don't always have the
"luxury of following all the rules"; that given recent events, people are *more
understanding" of the necessity for a little behind-the-scenes roughing up. The unanimity
of international conventions against torture notwithstanding, one hears authoritative voices
- for example, Robert Litt, a former Justice Department official - arguing that while torture
is not "authorized", perhaps it could be used in "emergencies," as long as the person who
tortures then presents himself to "take the consequences".
Harvard Law School Professor Alan Dershowitz has suggested the use of "torture
warrants" limited, he insists, to cases where time is of the essence. Most alarming of all,
a recent CNN poll revealed that 45% of Americans would not object to torturing someone if
it would provide information about terrorism. While fully acknowledging the stakes of this
new war, I worry that this attitude of lawless righteousness is one that has been practiced
in oppressed communities for years. It is a habit that has produced cynicism, riots and
bloodshed. The always-urgently-felt convenience of torture has left us with civic calamities
ranging from Abner Louima--a Haitian immigrant whom two New York City police officers
beat and sodomized with a broom handle because they mistook him for someone involved
in a barroom brawl-- to Jacobo Timerman in Argentina to Alexander Solzenizhen in the
Soviet Union--all victims of physical force and mental manipulation, all people who refused
to speak or didn't speak the words their inquisitors wanted to hear, but who were 'known'
to know something. In such times and places, the devastation has been profound. People
know nothing so they suspect everything. Deaths are never just accidental. Every human
catastrophe is also a mystery and mysteries create ghosts, hauntings, "blowback", and
ultimately new forms of terror. The problem with this kind of 'preventive' measure is that we
are not mindreaders. Even with sodium pentathol, whose use some have suggested
recently, we don't and we can't know every last thought of those who refuse to speak.
Torture is an investment in the right to be all-knowing, in the certitude of what appears
"obvious." It is the essence of totalitarianism. Those who justify it with confident
proclamations of "I have nothing to hide, why should they," overlap substantially with the
class of those who have never been the persistent object of suspect profiling, never been
harassed, never been stigmatized or generalized or feared just for the way they look.
The human mind is endlessly inventive. People create enemies as much as fear real ones.
We are familiar with stories of the intimate and wrong-headed projections heaped upon the
maid who is accused of taking something that the lady of the house simply misplaced.
Stoked by trauma, tragedy and dread, the creativity of our paranoia is in overdrive right
now. We must take a deep collective breath and be wary of persecuting those who
conform to our fears instead of prosecuting enemies who were and will be smart enough to
play against such prejudices.
In grief, sometimes we merge with the world, all boundary erased in deference to the
commonality of the human condition. But traumatic loss can also mean - sometimes -
that you want to hurt anyone in your path. Anyone who is lighthearted, you want to crush.
Anyone who laughs is discordant. Anyone who has a healthy spouse or child is your
enemy, is undeserving, is frivolous and in need of muting.
When I served as a prosecutor years ago, I was very aware of this propensity among
victims, the absolute need to rage at God or whoever is near - for that is what great sorrow
feels like when the senses are overwhelmed. You lose words and thus want to reinscribe
the hell of which you cannot speak. It is unfair that the rest of the world should not suffer
as you have.
This is precisely why we have always had rules in trials about burdens of proof, standards
of evidence, the ability to confront and cross-examine witnesses. The fiercely evocative
howls of the widow, the orphan, the innocently wronged - these are the forces by which
many a lynch mob has been rallied, how many a posse has been motivated to bypass due
process, how many a holy crusade has been launched. It is easy to suspend the hard
work of moral thought in the name of Ultimate Justice, or even Enduring Freedom, when
one is blindly grief-stricken. "If you didn't do it then your brother did", is the underlying
force of blood feuds since time began. "If you're not with us, you're against us", is the
dangerous modern corollary to this rage.
I have many friends for whom the dominant emotion is anger. Mine is fear, and not only of
the conflagration smoldering throughout the Middle East. I fear no less the risks closer to
home: this is how urban riots occur, this is how the Japanese were interned during world
war two, this is why hundreds of "Arab-looking" Americans have been attacked and
harassed in the last weeks alone.
I hear much about how my sort of gabbling amounts to nothing but blaming the victim. But
it is hardly a matter of condoning to point out that we cannot afford to substitute some
statistical probability or hunch for actual evidence. We face a wrenching global crisis now,
of almost unimaginable proportion, but we should take the risks of precipitous action no
less seriously than when the grief with which we were stricken drove us to see evil
embodied in witches, in Jews, in blacks or heathens or hippies.
Perhaps our leaders have, as they assure us, more intelligence about these matters than
we the people can know at this time. I spend a lot of time praying that they are imbued
with greater wisdom. But the stakes are very, very high. We cannot take an evil act and
use it to justify making an entire people, an entire nation or an entire culture the corpus of
"evil".
Give the government the power to assassinate terrorists, comes the call on chat shows.
Spare us a the circus of long public trials, say the letters to the editor.
I used to think that the most important human rights work facing Americans would be a
national reconsideration of the death penalty. I could not have imagined that we would so
willingly discard even the right of habeus corpus. I desperately hope we are a wiser people
than to unloose the power to kill based on undisclosed "information" with no
accountability.
We have faced horrendous war crimes in the world before. World war two presented
lessons we should not forget, and Nuremburg should be our model. The United States and
its allies must seriously consider the option of a world court. Our greatest work is always
keeping our heads when our hearts are broken. Our best resistance to terror is the
summoning of those principles so suited to keep us from descending into infinite bouts of
vengeance and revenge with those who wonder, like Milton's Stygian Counsel.
Will he, so wise, let loose at once his ire,
Belike through impotence, or unaware,
To give his Enemies their wish, and end
Them in his anger, whom his anger saves
To punish endless....
Patricia J. Williams is a professor of law at Columbia University in New York City. Her
column, "Diary of a Mad Law Professor" appears in The Nation Magazine. She is the
author of Seeing a Color-Blind Future: The Paradox of Race (Virago Press, 1997).
© Guardian Newspapers Limited 2001
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