Civil wrongs
Page 1
Since September 11, President Bush's war on terror
has highlighted issues of immigration, nationality, race
and culture, and widened the divide between 'insiders'
and 'outsiders'. And what that means, according to
law professor and author Patricia Williams, is that a
great many Americans have more to fear than ever.
Maya Jaggi reports
Saturday June 22, 2002
The Guardian
Patricia J Williams was snagged in thick traffic on her way to
Columbia Law School in New York's Upper West Side. A lethal
explosion in downtown Manhattan had triggered panic at a
possible terrorist strike, though the cause turned out to have
been nothing more than a faulty boiler. Williams, a Columbia law
professor and former attorney, shares the fear of terrorism
gripping the city and its hinterland. Yet, once settled in an office,
she softly warns that America's response has triggered "one of
the more dramatic constitutional crises in US history".
Since President George W Bush launched his "war on terror" in
the wake of September 11, he and attorney-general John
Ashcroft have pushed through "anti-terrorism" measures that
have had constitutional and civil rights lawyers warning of an
encroachment of powers akin to a police state. Blanket secret
detentions on US soil have been likened by human rights groups
to "disappearances" under Latin America's military regimes.
This amid a climate of suspicion and recrimination fuelling a
surge of attacks on "Arab-looking" Americans. Yet the
administration's measures have been marked by a limited public
outcry. It is lawyers who are leading a slow challenge to them
through US courts.
Williams is among relatively few Americans raising their voices
in alarm. She is disturbed by the apparent ease with which
fundamental rights, such as habeas corpus - the right to a court
hearing before prolonged detention - are being set aside in the
name of an emergency that may have no end. "I appreciate the
necessity for extraordinary measures in wartime," she says,
"but an indefinite period of emergency measures worries me
more than a list of finite military objectives. We need a clearer
definition of what we're at war with. The 'war on terror' is making
war not on acts of terror, but on things that terrify us." In this
"war of the mind", the enemy is apt to become "anybody who
makes us afraid".
The secret detention without charge, and transfer to military
custody, of the US citizen Abdullah al-Muhajir - formerly Jose
Padilla - on suspicion of plotting to detonate a radioactive "dirty
bomb" in Washington is also cause for alarm, she believes.
There is, she says, a "dangerously non-specific policy regarding
who gets to go to a court of law, and who can be confined
secretly and indefinitely".
On sabbatical from Columbia, Williams lives outside Boston, in
Massachusetts, with her adopted son, aged nine. In 2000, she
won a MacArthur Fellowship - worth $500,000 over five years - to
pursue her intellectual interests. She was completing a critique
of "racial profiling" - a practice civil libertarians argue is illegal
since it makes race alone grounds for stop-and-searches or
questioning - when the September 11 attacks took place.
Williams is now updating the book, aware that global
counterterrorism aimed, in the main, at ethnic groups such as
Arabs or Muslims has lent a fresh urgency to the subject.
Her misgivings are rooted not only in legal training but in a
historical perspective as a child of the civil rights era, and her
perception of the persistent workings of race in post-Jim Crow,
post-segregation America. In her book The Alchemy Of Race
And Rights (1991), now a feminist classic, and its follow-up, The
Rooster's Egg (1995), she invented a novel form of legal writing
by enlivening dust-dry jurisprudence with literary theory, social
research, memoir and often ironic personal anecdote, raising
subjects from Oprah to OJ to pose fundamental questions about
rights and justice in late 20th-century America.
Her BBC Reith lectures five years ago, published by Virago as
Seeing A Colour-Blind Future (1997), argued that the "liberal
ideal of colour-blindness" was still far distant. What, she asked,
had become of civil rights if she, as an African-American, had to
pay a higher mortgage than a white home-buyer on the grounds
that by moving into a white neighbourhood she would spark
"white flight" and lower her house's value? Or if she found herself
barred on sight by the entryphone security at a Benetton store -
the clothes brand that flaunts an ethnic rainbow of models?
She was unprepared for the media mauling. Although a
"tremendous honour", the lectures introduced her to "the best
and worst of the British press". While there may have been
legitimate objections to selecting an American rather than a
Briton as the first black Reith lecturer - and only the fourth
woman in almost 50 years - US neo-conservatives were
marshalled in the Daily Mail to attack what one called her
"virulent, anti-white racism". Williams, who has written with
subtlety and verve about the tension between America's rugged
individualism and the tendency to stereotype, found herself
caricatured as a "militant black feminist" and single mother. "I
was also compared to Al Sharpton and Louis Farrakhan, and
described as 'no Toni Morrison'." Her eyes widen in disbelief.
The BBC received almost 1,000 letters and phone calls in a
week about the lectures, "before I even opened my mouth". They
included far-right hate mail addressed to her and her son, then
aged four (whose name she still prefers to keep out of print).
Being savaged by Melvyn Bragg on Radio 4's Start The Week
was "the most painful - it took me off guard. He described my
work as 'violent', which offended my Quaker sensibility." Yet
much of the criticism abated once her first lecture had aired on
Radio 4. While the Guardian's then radio critic, Anne Karpf,
savoured her "sensitivity, wit and poetic turn of phrase", the
Daily Telegraph reviewer, Gillian Reynolds, asked what her
attackers were so afraid of. "All our submerged anxieties about
race, class, gender and academic status have already been let
off the leash at her in what seems to me a very un-British
display of vile prejudice," she wrote. "Try listening."
It is partly the insights of her Reith lectures that have led
Williams to caution against the war on terror. "The issues of
immigration, nationality, race, culture and categorisation are
bound up with the global expansion of anti-terrorism," she says.
According to US attorney-general John Ashcroft, "Foreign
terrorists who commit war crimes against the United States . . .
are not entitled to and do not deserve the protections of the
American constitution." Aside from the presumption of guilt in
this statement, it leaves some 20 million non-citizen US
residents subject to what Williams calls a "new martial law:
Bush has been seeking to distinguish our constitutional rights,
which belong to citizens alone, from human rights, which don't
have the same status; to distinguish the legal protection owed a
citizen from what's owed a non-citizen. Before, due process did
extend to everyone." Yet with the indefinite detention of
al-Muhajir, announced on June 10, even "fully-fledged citizens
may not be seen as 'deserving' the protections of the American
court system," she says.
Most attention has so far focused on the suspected al-Qaida
and Taliban fighters captured in Afghanistan, particularly the
300-odd held at Camp X-Ray in Cuba's Guantanamo Bay:
President Bush's order last November that they would be tried
secretly in military tribunals, without traditional legal safeguards
against wrongful conviction, proved so contentious that he was
forced to make concessions on the rules that would govern the
tribunals. Yet "homeland security" has wider implications.
According to Amnesty International, some 1,200 people were
detained after September 11 - "mainly men from Muslim or
Middle Eastern countries", though some may have been US
nationals of Middle Eastern origin - of whom 327 were still in
detention in February, when the justice department stopped
releasing figures. An unknown number are still detained, their
location often undisclosed. "That's an astonishing number,"
Williams says. "Exercised or not, it's a very dangerous power."
An interim rule brought in after September 11 allows the US
immigration service to hold people for up to 48 hours without
charge, or indefinitely "in an emergency, or in other
extraordinary circumstances". Of charges brought, most have
been for routine visa violations that do not normally warrant
detention. Williams cites one couple "who have been here for 18
years and led exemplary lives. They have a visa violation and are
being deported. It's a disproportionate response - it only inflames
things. I've seen it in African-American communities, where
people wanted greater policing. But it ends with communities
distrusting the police. That's how urban riots occur."
In the immediate aftermath of September 11, up to 5,000 men,
aged between 18 and 33, from Middle Eastern countries were
rounded up for questioning in what critics see as a dragnet
based on ethnic profiling, not evidence. Williams's forthcoming
book grew from notorious instances of male motorists stopped
in New Jersey for what is ironically dubbed "driving while black".
As she has written, "the kind of profiling that seems to inform
the majority of stops and searches is usually based on
statistical relations so vague as to be useless . . . premised on
diffuse probabilities about looks and dress, ethnicity or
nationality, class or educational status." Targeting
neighbourhoods in a country in which housing is still often
segregated may result in a kind of racial profiling. "The
statement, 'There's a greater crime rate in poor or deprived
neighbourhoods' becomes 'so most people in these
neighbourhoods must be criminals'. To my ear, as an
African-American, it's the kind of thinking that turns whole
communities into suspect communities . . . I worry that in time
of emergency, these policing tactics have become legitimised
and exported."
Rudolph Giuliani's "zero tolerance" approach to crime has
admirers. "But there was a huge scandal," Williams insists. She
cites New York's Washington Heights: "Crime did drop because
of a more visible police presence in an area that had been
neglected, but not without police corruption that poisoned
relations with the community, and setting up of the much vilified
'cowboy' Street Crimes Unit - which included the men who shot
Amadou Diallo [an unarmed west African man killed by police in
1999].
"There was a ringing of neighbourhoods; 90% of the male
population, and half the female, was being stopped, arrested,
frisked and abused. If you pick up half the population, crime will
drop. But they arrested many people who weren't criminals and
the rate of complaints went up, from 1,000 to 53,000. Whole
communities become alienated. We should be wary of those
lessons."
For Williams, the supposed trade-off between freedom and
security in combating the threat of terrorism is a false choice.
Her point is that such profiling is not simply unfair but an
ineffectual misuse of data; it delivers neither security nor justice.
"It's a panic measure that diverts resources we should be
expending on specific threats." In her view, "we must 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." She says, "Random checks or
profiling aren't going to stop the determined operatives who are
trained to defy visual expectations. The moment one has a fixed
image, say of a man, it'll be a woman next time." Both the
British "shoe bomber" Richard Reid, and the Chicago Latino
al-Muhajir, bucked the expected profile of an "Islamist terrorist".
Mindful of a historical "tendency to see evil embodied in witches,
in Jews, in blacks or heathens", she warns: "We're buying into
the idea that we can stop terrorism if we investigate 'outsiders' in
our midst."
She quotes aghast from an article by Harvard law professor
Richard Parker in the Harvard Journal Of Law And Public Policy,
advocating a "four-point test for love of country" to rival David
Blunkett's compulsory "citizenship tests" for would-be migrants.
Set out in the nationality, immigration and asylum bill, those
entail exams in the English language and British institutions.
Parker, meanwhile, ranks subjective reactions to the September
11 attacks according to whether people felt it was an attack on
the US which should now defend itself (patriotic) or worried more
about US "past misdeeds" and "the way our actions are
perceived abroad" (unpatriotic).
For Williams, the test exemplifies a new xenophobia. "It says,
'Love of country involves drawing a line between insiders and
outsiders, Americans and others. It privileges one over the
other.' I think I might fail a couple of those tests; they could
make suspects out of Quakers, or people with dual citizenship,
or people who like to travel, or who are as concerned about
'outsiders' as 'insiders' because they all fall into the category of
'human'. In the question of what's unpatriotic, the American
psyche is very fragile now. I appreciate the fear of terror, but
trying to define the inside from the outside in a moment as
diasporic as ours, and a country as diverse as ours, could
splinter us even further."
Yet even "insiders" are now subject to expanded surveillance.
According to another critic, Ronald Dworkin, Quain Professor of
Jurisprudence at University College London, the USA Patriot Act
passed last October sets out a "breathtakingly vague and broad
definition of terrorism and aiding terrorists" and sweepingly
expands the government's powers to search the premises and
property of even its own citizens.
guardian.co.uk
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