This Dangerous Patriot's Game 

After 11 September,the US Introduced Laws That 'Mirror the
Worst Excesses of Some Dictatorships'

By Patricia Williams

December 2, 2001; the Observer of London


Things fall apart, as Chinua Achebe put it, in times of
great despair. The American nightmare that began with the
bombing of the World Trade Center and the Pentagon, has,
like an earthquake, been followed by jolt after jolt of
disruption and fear. In the intervening three months, yet
another airplane crashed, this time into a residential
section of New York City.  Anthrax contamination succeeded
in closing, for varying lengths of time, all three branches
of government. From the tabloids to The New York Times,
major media outlets have had their centers of operation
evacuated repeatedly. The United States Postal Service is
tied in knots. Hundreds of anthrax hoaxes have stretched law
enforcement beyond all capacity. Soldiers guard all our
public buildings. Around four thousand Americans have died
in planes, collapsing buildings or of anthrax toxin since
that morning in September; tens of thousands more have lost
their jobs. Some 5000 Arab residents between the ages of 18
and 33 have been summoned for interrogation by the FBI. And
twenty million resident aliens live suddenly subject to the
exceedingly broad terms of a new martial law. Even while we
try follow the president's advice to pick ourselves up in
time for the Christmas shopping season, punchdrunk and
giddily committed to soldiering on as before, we know that
the economic and emotional devastation of these events has
only begun to register.

As the enormity of the destruction settles in and becomes
less dreamlike, more waking catastrophe, American society
begins to face those long-term tests that inevitably come
after the shock and horror of so much loss. We face the test
of keeping the unity that visited us in that first moment of
sheer chaos. We face the test of maintaining our dignity and
civility in a time of fear and disorder. Above all, we face
the test of preserving the rights and freedoms in our
Constitution and its Bill of Rights.

Few in the United States question the necessity for unusual
civil measures in keeping with the current state of
emergency.  But a number of the Bush Administration's new
laws, orders and policies are deservedly controversial: the
disregard for international treaties and conventions; strict
controls on media reports about the war; secret surveillance
and searches of citizens* computers; widespread ethnic
profiling; indefinite detention of non-citizens; offers of
expedited American citizenship to those who provide evidence
about terrorists; and military tribunals with the power to
try enemies in secret, without application of the usual laws
of evidence, without right of appeal, yet with the ability
to impose the death penalty.  Opportunity for legislative or
other public discussion of these measures has been largely
eclipsed by the rapidity with which most of them have been
pushed into effect. This speed, one must accede, is in large
part an exigency of war. It is perhaps also because Mr. Bush
has always preferred operating in a rather starkly corporate
style. In any event, the president has attempted to enlarge
the power of the executive to an unprecedented extent, while
limiting both Congressional input as well as the check of
the judiciary.

Overall, we face one of the more dramatic Constitutional
crises in United States history. First, while national
security mandates some fair degree of restraint, blanket
control of information is in tension with the Constitution's
expectation that freedom of a diverse and opinionated press
will moderate the tyrannical tendencies of power. We need to
have some inkling of what is happening on the battlefield in
our name. On the domestic front, moreover, the First
Amendment's protection of free speech, is eroded if even
peaceful dissent becomes casually categorized as dangerous
or unpatriotic, as it has sometimes been in recent
weeks. This concern is heightened by the fact that the war
has been framed as one against "terror" - against unruly if
deadly emotionalism - rather than as a war against specific
bodies, specific land, specific resources.

A war against terrorism is a war of the mind, so broadly
defined that the enemy becomes anybody who makes us
afraid. Indeed what is conspicuous about American public
discourse right now is how hard it is to talk about facts
rather than fear.

In a struggle that is colored by a degree of social panic,
we must be very careful not to allow human rights to be cast
as an indulgence. There is always a certain hypnosis to the
language of war -the poetry of the Pentagon a friend calls
it - in which war means peace, and peace-mongering invites
war. In this somewhat inverted system of reference, the
bleeding heart does not beat within the corpus of law but
rather in the bosom of those whose craven sympathies amount
to naive and treacherous self-delusion. Everywhere one hears
what, if taken literally, amounts to a death knell for the
American dream: rights must be tossed out the window because
"the constitution is not a suicide pact".

But accepting rational reasons to be afraid, the unalloyed
ideology of efficiency has not only chilled free expression,
but left us poised at the gateway of an even more fearsome
world in which the "comfort" and convenience of high-tech
totalitarianism gleam temptingly; a world in which our
American-ness endures only with hands up! so that our
fingerprints can be scanned, and our nationalized-identity
scrutinized for signs of suspicious behavior.

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