Read The Rights of the People Online
Authors: David K. Shipler
The Rights of the People (56 page)
This was a reminder that during Soviet days, membership in the Communist Party had been a prerequisite for many influential jobs, including factory manager, hospital director, history professor, and journalist. The party was exclusive, however, embracing only a small percentage of the population. Komsomol, the Communist Youth League, had much broader coverage, grooming virtually all Soviet citizens from their school years upward. Without that membership card, early careers were stymied, which was devastating in a system where government owned virtually everything, from restaurants to coal mines.
The Federalist Society is not Komsomol or the Communist Party, of course. Nothing in any of these comparisons is exactly the same. Not all members of the Federalist Society think alike, and they certainly aren’t afraid to speak their minds. But they do tend to cluster around a like-minded ideology, and their doctrinal purity drives their organizing efforts. Komsomol was virtually mandatory and all-inclusive; the Federalist Society is optional and self-selective. Komsomol and the party tolerated no competitive ideas outside their own; the Federalist Society stands as one choice among a multitude of ideas and associations across the American spectrum. But there’s no avoiding the hard fact that when membership in an ideological movement is used to ensure political conformity in government hiring, the culture of political pluralism is damaged, and so is governmental expertise. The Bush administration’s filtering produced immigration judges with no experience in immigration law, regulatory officials without expertise in their areas of responsibility, and a Coalition Provisional Authority to run Iraq that was populated with young Republican zealots who were politically safe and professionally impaired. The disastrous results were well documented.
Enforcing “political correctness” (an old communist term), absolutists of all stripes legitimize only a single way of thinking, exclude those who deviate, and discredit their opponents with propaganda. These were hallmarks of Soviet methodology, which also included imprisonment and exile. More play entered the Soviet system in later years, but for most of its history, the apparatus removed or destroyed anyone who disagreed, all the way up to the Politburo. In milder form, Bush ideologues attempted that as well, successfully at times.
My colleague Christopher Wren in the
New York Times
Moscow bureau used to feel a sense of déjà vu about the bullying KGB and Communist Party officials he encountered: They reminded him of Southern segregationists he’d covered during the civil rights movement. Soviet authorities did not appreciate the analogy, just as hard-right Republicans will not applaud the ones I’m making here. But I’m not the first to note the circular nature of the political spectrum, a line whose extreme ends, left and right, are bent around until they meet at a place where they share some unattractive traits: an unyielding sense of certainty that they have a monopoly on truth, and a raging intolerance of those who differ. It’s not hard to find these characteristics in the United States today.
In the American system, though, it’s not easy to convert intolerance into government fiat. Soviet Communists were in tune with Russian history, but right-wing radicals are at odds with American history. They resemble each other in their ways of thinking, not in what they can do.
The Soviet structure subordinated the individual to institutions, and so would extreme American conservatives—despite their rhetoric to the contrary—by means of activist judges on the right, enhanced corporate powers, expanded police authority against crime, and extralegal tactics of counterterrorism. Consider how readily some Republican politicians would turn off the constitutional protections of civilian courts and put terror suspects—even those arrested inside the United States—into the hands of military interrogators and military commissions. That’s where they wanted to see the Nigerian who tried to blow up a plane over Detroit in 2009, and they railed against President Obama for respecting his rights and trusting a criminal justice system based on the framers’ principles. On both the Soviet left and the American right, policy did and does pivot on national security, which rationalizes practically every abuse and musters a crude patriotism against dissent. Like some Americans, Soviet Communists valued conformity of opinion and feared the disorder brought by liberty.
The opposite approach, embracing the risks of robust freedom, might be called courage. “Those who won our independence by revolution were not cowards,” Justice Louis Brandeis wrote years ago: “They did not fear political change. They did not exalt order at the cost of liberty.”
This conclusion is not a prediction, then, just a note of caution. Although we’re certainly not becoming Soviet, when we see occasional traits of a dead dictatorship we relearn the fundamental lesson bequeathed by the framers: that liberty cannot rest only on the goodness of transitory officials and leaders, whoever they may be, but relies on a durable foundation of constitutional protections. Those protections need defending. Rights that are not exercised are lost. Some have been diminished not only under the chisel of the courts but also by the neglect of ordinary citizens who neither invoke them nor challenge their violators.
The Supreme Court has failed too frequently. It often divides along the lines of political allegiance rather than constitutional analysis, cheapening itself. Most justices don’t grow and evolve into their awesome powers, but rather freeze themselves in place, wherever they began, as if they had a lifetime appointment to honor whatever political constituency placed them on the bench. They would honor the country by respecting the observation of Justice John Paul Stevens: “Learning on the job is essential to the process of judging.”
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Under Chief Justice Roberts, the high court has grown less attentive to the precious rights of the small and the weak, more eager to strengthen the already strong. Therefore, our rights are less robust than they were a decade ago, and may be even less so a decade hence.
Yet eventually it will be the judgment of the high court of history that matters. The decision will be favorable if we nurture our checks and balances, if we push back hard to maintain our constitutional liberties, empower the powerless, and recognize that the rights of the lowliest criminal are not his alone. They belong to us all.
CHAPTER 1: SAVING THE CONSTITUTION
1.
Transcript, Madison Debates, Constitutional Convention, July 11, 1787, the Avalon Project, Lillian Goldman Law Library, Yale Law School,
http://avalon.law.yale.edu/18th_century/debates_711.asp
.
2.
Steven Waldman,
Founding Faith
(New York: Random House, 2008), pp. 142–44.
3.
“When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. The framers wanted to do away with this prohibition.” Judge Richard A. Posner, “Overcoming Law,” at
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp
.html
.
4.
David Cole, interview with author, June 24, 2003.
5.
Thomas Jefferson,
The Works of Thomas Jefferson
, Vol. 12, ed. Paul Ford (New York: G. P. Putnam’s Sons, 1904–1905), pp. 137–38. Cited in David M. O’Brien,
Constitutional Law and Politics
, Vol. 2,
Civil Rights and Civil Liberties
(New York: Norton, 2003), p. 30.
6.
Marbury v. Madison, 1
Cr. (5 U.S.) 137 (1803).
7.
To the dismay of some legal scholars, it has been the due process clause rather than the guarantee of “privileges and immunities” that has governed the application of the Bill of Rights to the states. That has worried some rights advocates who see a prospect that “due process” could someday be interpreted literally and narrowly enough, as Justice Antonin Scalia has indicated he would like to do, to undermine the incorporation of some amendments into rights at the state and local levels. See Robert Barnes, “Gun Case Presents Quandary for Court,”
Washington Post
, March 1, 2010, p. A1.
8.
Gitlow v. New York
, 268 U.S. 652 (1925).
9.
Near v. Minnesota
, 283 U.S. 697 (1931).
10.
Brown v. Mississippi
, 297 U.S. 278 (1936).
11.
Wolf v. Colorado
, 338 U.S. 25 (1949).
12.
Malloy v. Hogan
, 378 U.S. 1 (1964).
13.
Mapp v. Ohio
, 367 U.S. 643 (1961).
14.
Gideon v. Wainwright
, 372 U.S. 335 (1963).
15.
Miranda v. Arizona
, 384 U.S. 436 (1966).
16.
Duncan v. Louisiana
, 391 U.S. 145 (1968).
17.
David McCullough,
John Adams
(New York: Simon & Schuster, 2001), p. 504.
18.
50 U.S.C. § 21, which reads in part: “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”
19.
Sedition Act, approved July 14, 1798, § 2.
20.
Geoffrey R. Stone,
Perilous Times: Free Speech in Wartime
(New York: W. W. Norton, 2004), p. 19.
21.
A collection was taken up to pay his fine. Contributors included Thomas Jefferson, James Madison, and James Monroe. Stone,
Perilous Times
, pp. 18, 50–52.
22.
Thomas Jefferson,
First Inaugural Address
, March 4, 1801, the Avalon Project at Yale Law School,
http://avalon.law.yale.edu/19th_century/jefinau1.asp
.
23.
An antiwar politician, former Congressman Clement Vallandigham, was charged with “treasonable utterances” for saying that the “wicked, cruel, and unnecessary” war was being waged “for the freedom of the blacks and the enslavement of the whites.” Stone,
Perilous Times
, p. 82.
24.
Stone,
Perilous Times
, pp. 84–86, 124, and
Ex parte Merryman
, 17 F. Cas 144 (D. Md. 1861), in which Taney sat as a Circuit Court judge of the Maryland District.
25.
Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7. The Hawaiian Organic Act of 1900 authorized the governor of Hawaii to suspend habeas corpus in case of rebellion or invasion. Ch. 339, § 67, 31 Stat. 153. In 1902, Congress authorized a suspension by the governor of the Philippines, who invoked it in 1905 for nine months. Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691.
26.
Ex parte Milligan
, 71 U.S. 1 (1866). The Chase Court, 1864–1873, the Supreme Court Historical Society,
http://www.supremecourthistory.org/02_history/subs_history/
02_c06.html
, and
Ex Parte Milligan: Trials in Wartime
, American Bar Association, Key Supreme Court Cases,
http://www.abanet.org/publiced/youth/sia/holtcases/milligan.
html
.
27.
Stone,
Perilous Times
, p. 137.
28.
40 Stat. 553.
29.
David Cole,
Enemy Aliens
(New York: New Press, 2003), p. 112–13.
30.
Vartan Gregorian, “The Relevance of Academic Freedom,” Herbert Gutman Memorial Lecture, CUNY Graduate Center, Oct. 15, 2002.
31.
Peter H. Buckingham, “ ‘Red Tom’ Hickey and the Suppression of the Texas
Rebel
,” unpublished paper. On post-Reconstruction slavery using convicts, see Douglas A. Blackmon,
Slavery by Another Name
(New York: Doubleday, 2008).
32.
Stone,
Perilous Times
, p. 224.
33.
Conversation between Goering and U.S. Army Captain G. M. Gilbert on Apr.
18, 1946, quoted in Edward Dolnick,
The Forger’s Spell
(New York: HarperCollins, 2008), p. 80.
34.
Alexander Hamilton, Federalist Paper 8.
35.
The Alien Registration Act, which also required all noncitizens to register with the government. 54 Stat. 670, 671, title I, §§ 2–3 (June 28, 1940), current version at 18 U.S.C. § 2385.
36.
Following the death of the judge, the government dismissed the charges against the fascists, four months after the end of the war. Stone,
Perilous Times
, pp. 255, 273–75.
37.
Ibid., p. 280.
38.
Ibid., p. 278.
39.
Cole,
Enemy Aliens
, p. 93.
40.
The vote was 6–3 in
Korematsu v. United States
, 323 U.S. 214 (1944). The Court also upheld a curfew imposed on Americans of Japanese ancestry in
Hirabayashi v. United States
, 320 U.S. 81 (1943) and
Yasui v. United States
, 320 U.S. 115 (1943). It delayed a decision in
Ex parte Endo
, 323 U.S. 283 (1944), releasing a Japanese-American woman whose brother was serving in the U.S. Army, until a day after the government announced that all the detainees would be released. See also Stone,
Perilous Times
, pp. 297–303.
41.
Cole,
Enemy Aliens
, pp. 129, 141.
42.
Ibid., pp. 148–49.
43.
The material in this section is drawn mostly from
Intelligence Activities and the Rights of Americans
, Book II. Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate (“Church committee”), Apr. 26, 1976, pp. 5–15, 50, and from original documents linked to the report.
44.
Jane Mayer,
The Dark Side
(New York: Doubleday, 2008), pp. 113–15. Jack Goldsmith,
The Terror Presidency
(New York: Norton, 2007), pp. 36–37.
45.
The state secrets argument, aimed at thwarting a suit by four Brooklyn residents who claimed that their international phone calls were illegally intercepted, was made after Attorney General Eric Holder announced tighter rules for invoking the protection, which he claimed would not be used to mask government wrongdoing or embarrassment. Michael Isikoff, “Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era,”
Newsweek
, Declassified Blog, Nov. 2, 2009, at
http://blog.newsweek.com/blogs/declassified/archive/2009/
11/02/obama-secrecy-watch-ii-a-state-secrets-affidavit-straight-from-the-bush-era.aspx
. The case was
Shubert v. Obama
, formerly
Shubert v. Bush
, C 07-0693 (DC No. D. Ca.).
46.
Mayer,
The Dark Side
, pp. 146, 180.
47.
Cole,
Enemy Aliens
, p. 25.
48.
Eric Lichtblau, “Thousands from Muslim Nations Were Investigated Before ’04 Election, Data Show,”
New York Times
, Oct. 31, 2008, p. A17, based on internal reports obtained by the National Litigation Project at Yale Law School and the American-Arab Anti-Discrimination Committee.
49.
Eric Schmitt and Mark Mazzetti, “Secret Order Lets U.S. Raid Al Qaeda in Many Countries,”
New York Times
, Nov. 10, 2008, p. A1.
50.
Mayer,
The Dark Side
, p. 110.
51.
Ibid., pp. 105, 151, 152, 165, 168, 173, 274, 276, 309.
52.
Obama ordered that all interrogations, by the CIA and other agencies, be performed in accordance with the Army Field Manual, which barred abuse and torture. But the order could be rescinded. Democratic Senator Dianne Feinstein, chair of the Senate Intelligence Committee, launched an investigation into torture, but most of its findings remained classified. A limited declassified document was released in Apr. 2009. “Release of Declassified Narrative Describing the Dept. of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program,” at
http://intelligence.senate.gov/pdfs/olcopinion.pdf
.
53.
“Re: Standards for Conduct of Interrogation under 18 U.S.C. §§ 2340–2340A,” Memorandum for Alberto R. Gonzales, Office of the Assistant Attorney General, Aug. 1, 2002, pp. 1, 36–37. After its contents became public, it was rescinded by the White House, but its stricter replacement guidelines were secretly loosened by a subsequent memo that effectively permitted the abuse to continue. See the detailed account in Mayer,
The Dark Side
.
54.
John C. Yoo and Robert J. Delahunty, “Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Dept. of Defense, Oct. 23, 2001. The memo finds no obstacle in the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), which prohibits the use of the military for law enforcement purposes inside the country. The memo argues that counterterrorism could qualify as a military function rather than law enforcement.
55.
Yoo and Bybee were accused of “professional misconduct” by the Obama Justice Department’s Office of Professional Responsibility, which might have led to disbarment proceedings, but the charge was downgraded by Associate Deputy Attorney General David Margolis, a career official who dealt with disciplinary matters. He called their legal reasoning “flawed,” but not punishable. “While I have declined to adopt O.P.R.’s findings of misconduct,” Margolis wrote, “I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.” Eric Lichtblau and Scott Shane, “Report Faults 2 Authors of Bush Terror Memos,”
New York Times
, Feb. 19, 2010. David Margolis, Memorandum for the Attorney General, the Deputy Attorney General, Jan. 5, 2010.
56.
Emil Constantinescu, address to the World Justice Forum, Vienna, July 3, 2008.
57.
“The Rule of Law Index,” World Justice Project, World Justice Forum, July 2–5, 2008, Vienna, p. 6.
58.
David Rothkopf,
Superclass
(New York: Farrar, Straus and Giroux, 2008), p. 193.
59.
Nicholas D. Kristof, “117 Deaths Each Day,”
New York Times
, March 13, 2004, p. 17. Scott Shane, “A Year of Terror Plots: Through a Second Prism,”
New York Times
, Jan. 13, 2010, p. A1.
60.
This holds whether terrorism defendants are held inside or outside the criminal justice system. From Sept. 12, 2001, to Dec. 31, 2007, only 28 percent of criminal terrorism convictions came at trial; the rest were guilty pleas. Just 9 percent of those charged were acquitted or had charges dismissed. Richard B. Zabel and
James J. Benjamin, Jr.,
In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts
, Human Rights First, May 2008, p. 26.