The Rights of the People (55 page)

Matthew Purdy of
The New York Times
put the question nicely: “Were they a cell in a deep sleep, or had their trip to Afghanistan been a bad dream?”
⁷⁰

Dreams and nightmares occupy us now. After the terrorist attacks of 9/11, we accused ourselves of lacking imagination. Most of us had never pictured a few suicidal men armed with box cutters seizing jetliners and bringing down the tallest buildings in New York. We had never fantasized so darkly, and since then we have been encouraged to do so. Through our heads dance the specters of cities stricken by chemical, biological, or nuclear weapons. We imagine. We are wise to imagine, for the threats are not fantasies.

Aggressive investigation is legitimate and necessary, but it creates two hazards: the danger of error in a particular case, and the danger to the country’s larger culture of liberty. As it happens, the framers left us a system both practical and principled, a set of guarantees that protect our
rights and simultaneously provide the best possible accuracy in criminal justice. We don’t have to choose, because there is no contradiction. Observing the rights leads to reliability in the process.

While we stay alert by imagining the worst scenarios of terrorism, we might also imagine the sacrifice of our liberties on the altar of security. We face both threats—the risk of being attacked and “the risk of being less free,” in Hamilton’s words. The first step toward preventing either tragedy is vigilance.

I
N SEARCH OF
a shocking metaphor, critics of American policies after 9/11 reached for a Soviet analogy. Harold Pinter, the Nobel Prize—winning playwright, lamented the millions of Americans “imprisoned in the vast gulag of prisons which extends across the U.S.” The University of California Press in 2004 published
American Gulag
, a book on immigration prisons by Mark Dow. Amnesty International disregarded the cautionary advice of a former Soviet political prisoner, Pavel Litvinov, and in June 2005 called the American prison at Guantánamo Bay “the gulag of our times.”

Later that month, Senator Richard Durbin of Illinois quoted an FBI agent’s memo on seeing Guantánamo prisoners chained in fetal positions and subjected to extreme temperatures. “If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control,” Durbin told the Senate, “you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings.” After a week of stormy protest, Durbin apologized, saying, “I have come to understand that was a very poor choice of words.”

By the following fall, however, the words had been widely adopted in the wake of
The Washington Post
’s disclosure that the CIA was operating a global network of clandestine prisons. “Secret, ad hoc prisons that carry a whiff of the old Soviet-style gulags are not the solution,” said
USA Today.
¹
“
U.S. MUST DISMANTLE ITS SECRET CIA GULAG
,” declared a headline on a Minneapolis
Star Tribune
editorial.
²
In
The Oregonian
, an editorial called the prisons “America’s gulag.”
³
“Gulag,” the Russian acronym for the Chief Administration of Corrective Labor Camps, was made famous by Aleksandr Solzhenitsyn’s trilogy,
The Gulag Archipelago
.

It would be easier to dismiss these parallels if the Soviet Union still existed as the antithesis of America. The contrasts were profound and
obvious then: a dictatorship that filtered ideas, enforced political obedience, and grew from a long authoritarian history—compared with a freewheeling democracy that relished irreverent speech, decentralized its government, and threw its doors open to the world. Russia was a useful foil for America’s virtues, enabling not just our fear but also our pride. We were different, as we could see vividly every day.

Now we can only remember how different we were, and consider how to stay that way. The line between dictatorship and democracy looks so bold and bright. The culture of freedom looks so permanent, the system of protections so unshakable. Americans might be forgiven their complacency, as if it were divinely ordained that the United States should forever guard the liberties of its people.

Yet from time to time the shadows of autocracy flicker across our shining enterprise, casting doubt. Even judges and legal scholars take note and reach for that analogy. After the American citizen Jose Padilla was imprisoned as an enemy combatant, the Yale law professor Bruce Ackerman declared, “Three years of not even being told what the charge against you is, is worthy of Stalin.”
⁴
When Florida police looking for drugs adopted a practice of doing sweeps of buses and trains, checking everyone’s ID and asking to search luggage, a state court said the tactic “evoked images of other days, under other flags,” then thundered: “This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa.” Nonetheless, the police methods were later upheld by the Supreme Court.
⁵

So when thinking about the Soviet system as a model of what we do not want to become, it is worth asking ourselves what to watch out for.

Major Lev Kopelev of the Soviet Red Army spoke German, the language of the enemy. Captain James Yee of the United States Army spoke Arabic, the language of the enemy. Kopelev tried to stop fellow soldiers from raping and robbing. Yee tried to stop fellow soldiers from abusing and humiliating. Kopelev was arrested on April 5, 1945. Yee was arrested on September 10, 2003.

What happened to each officer in the end, however, marks the distinction between dictatorship and democracy, one that lies less in the impulses and attitudes of people in authority, which can be all too similar in both systems, than in structural bulwarks against the abuse of power. The Soviet Union had no such barricades. Those in the United States are in place, but they wobble at times.

The Soviet major and the American captain both held significant posts. As the Red Army swept westward toward the close of World War II,
Kopelev propagandized German troops with leaflets and loudspeaker broadcasts. He also reported and halted rapes of civilians and looting by his comrades, for which he was charged with showing “pity for the enemy” and being “friendly with spies.”
⁶

Early in the American war on terrorism, Yee served as the Muslim chaplain at the Guantánamo Bay camp holding nearly seven hundred Muslim prisoners. He attempted to stop guards’ violence against inmates and desecration of their Korans. For that, he was accused of having “associated with known terrorist sympathizers.”
⁷

Both the Soviet and American officers were orthodox patriots. Kopelev, a steadfast Communist Party member who revered Stalin, had received a commendation shortly before his arrest. Yee, a West Point graduate in a military family, and a Bush voter in 2000, received the highest possible performance evaluation two days before being taken into custody.
⁸
Kopelev was convicted and spent nine years in the Gulag, where he met Solzhenitsyn. Yee was publicly smeared, spent seventy-six days shackled in solitary confinement, and was ultimately driven out of the army. Both men’s innocent, humane actions, seen by superiors through the lens of wartime fervor, were refracted into behavior that looked suspicious, then subversive, and finally treasonous.

It is not quite enough to say that the American system worked in Yee’s case. Checks and balances were somewhat effective—army prosecutors didn’t have evidence and had to drop the serious charges. But vindictively, they began to try him for possessing pornography and for adultery, an offense for which hardly anyone in uniform is ever prosecuted unless it is accompanied by other criminal charges, such as rape. In full view of his parents, his wife, and his four-year-old daughter, the army put on a female officer who testified to their affair, provoking Yee’s sobbing wife to confront the officer outside the courtroom and shout, “You happy now? Destroying a family?”
⁹

Perhaps shamed by the spectacle it was making of itself, the army finally abandoned the prosecution and settled for Yee’s departure from the service. The free press, the cleansing sunlight of publicity, had opened an escape never available to Kopelev in the Soviet Union’s closed system of thinking.

The two men were both minorities: Yee a Chinese-American convert to Islam, and Kopelev a Jew, and so their superiors on each side saw them as standing apart, outside the patriotic mainstream. As a Jew, Kopelev was berated by a confused Soviet general: “How can you love the Germans? Don’t you know what they’ve been doing to the Jews?” The general then
reminded him of an axiom of war: “To pity the enemy is to betray your own.”

Six decades later, American officers with narrow experience in the world grew suspicious over Yee’s daytime prayers with Muslims and his explanatory lectures on the prisoners’ religious culture. A junior security officer thought him overly sympathetic, as did Guantánamo’s General Geoffrey Miller, who later gained infamy as commander of the abuse-ridden Abu Ghraib prison.
¹⁰
As Yee recalled: “One of the initial allegations made against me was, ‘Who does this Chinese Taliban think he is, telling us how to treat our prisoners?’ ”
¹¹

Both Yee and Kopelev wrote memoirs about their experiences, and both were published in the United States. Kopelev’s could not appear in the Soviet Union, which was closed to its own history.

Having known Kopelev well during my years in Moscow, and after two long interviews with Yee, I was struck by how similarly they described their commanders’ and persecutors’ anxieties and fantasies. The Communist Party was internationalist in name only. In reality, it served as a repository of Russians’ complexes about the outside world, especially the West: mixed feelings of inferiority and superiority, resentment and envy, curiosity and chauvinism, all producing impulses of suspicion toward fellow citizens who registered too much interest in things non-Soviet. In that insular universe, Jews looked somewhat alien, therefore untrustworthy, and associations with foreigners raised dark questions of disloyalty. The toxic paranoia reached its height under Stalin, and ebbed but did not disappear as the Soviet Union headed toward collapse.

In milder form, Islam, Arabs, and the Muslim world have played the same role for some Americans, but within a system known for its fragmented power, diverse attitudes, and a scattered ethnocentrism that does not usually shape government policy. Accordingly, five or six years after the persecution of Yee, a different military subculture—medicine and psychiatry—failed to sound an alarm when Major Nidal Malik Hasan, an army psychiatrist, preached the Koran inappropriately at grand rounds, corresponded with a radical imam by e-mail, and worried colleagues with remarks of concern about Muslim Americans fighting Muslims in Iraq, all danger signs much clearer than anything done by Yee. It seemed that the pendulum of vigilance had swung to the opposite extreme, at least in the milieu of the Walter Reed Army Medical Center. Hasan later killed thirteen at Fort Hood in Texas.

The Yee and Hasan episodes together illustrate how far from an autocracy
America remains. It might seem pointless and offensive, then, to speak of the old Soviet Union and the United States in the same breath, the structures are so at odds with each other. The only similarities are in the attitudes of certain officials and citizens, and those are worth some attention.

Uncomfortable reminders of Soviet thinking kept cropping up in the United States during the post-9/11 era. Periodically I checked my impressions with Americans who had also lived in Moscow as diplomats or correspondents, and with Russians who had grown up there and emigrated. Usually they nodded and agreed that they recognized some of the symptoms of the autocratic mind-set, while also recognizing the vast differences between the systems.

Much of the behavior has been written about in these pages and elsewhere. Bush administration lawyers, who interpreted statutes to suit the government’s programs of torture and warrantless surveillance, manipulated the law as adroitly as Kremlin officials once constructed façades of legal-looking procedures for trying dissidents. The purposes were the same: to facilitate the machinations of the state. So in Washington, the rule of law was suspended at times, as it was all the time in Moscow.

Both right-wing American ideologues and left-wing Soviet ideologues believed fervently in expansive executive power against weak legislative and judicial branches. Executive-branch dominance was pressed by Bush officials who evaded Congress and the courts, and Kremlin officials kept authority away from the supine legislature (the Supreme Soviet) and the judges who rendered “telephone justice.”

In certain periods, the Soviet regime also spun and suppressed science for political aims, and Republican officials tried as much during the Bush administration, censoring studies on global warming, stacking committees and research programs to achieve desired results, and putting conservative social policy ahead of scientists’ recommendations on certain regulations.
¹²

Russians were screened for political orthodoxy before placement in significant jobs. Bush apparatchiks did the same, politicizing agencies of government from the Food and Drug Administration to the Department of Education and the Justice Department’s Civil Rights Division. As litmus tests, applicants were asked ideologically charged questions: “What is it about George W. Bush that makes you want to serve him?” “Tell us about your political philosophy,” whether you’re a “social conservative, fiscal conservative, [or] law and order Republican.” The options did not include liberal Democrat or even libertarian conservative. These
inquiries were put to candidates for law-enforcement and policy-making positions at the Justice Department by a devout conservative in her twenties, Monica Goodling, a graduate of Messiah College and of the evangelist Pat Robertson’s Regent University School of Law. “Aside from the President, give us an example of someone currently or recently in public service who you admire,” she would say, requesting the name of a favorite Supreme Court justice or legislator. She asked applicants about their positions on abortion and their voting histories, issues irrelevant to the work they would do. Candidates were also helped by belonging to the Federalist Society, a highly organized movement of conservatives (including libertarians) skilled in recruiting law students and mentoring them into legal positions and judgeships.
¹³
In the narrow world of politicized hiring, membership became a key credential.