The Rights of the People (8 page)

Freedom demands a certain risk. We risk the open spread of racial hatred by protecting free speech. We risk the release of a murderer by presuming innocence and by protecting his rights to the privacy of his home, to silence during interrogation, to counsel, to confront witnesses against him. We risk terrorism (if we are willing) by restricting the police power of the state to search, to interrogate, to jail without sufficient evidence or proper trial. It is the police state, not the open society, that strives to abolish risk. We do not want massive wiretapping and sweeping home invasions, confessions obtained by torture, secret testimony, and kangaroo courts—or do we?

Our system is founded on the premise that it is far worse to convict wrongly than to fail to convict at all, that imprisoning the innocent is more heinous than freeing the guilty. And while that ideal is not always met—innocents populate death row and other wings of American prisons—the model stands as a benchmark for measuring performance. It confronts us with a biting question: How much risk are we willing to absorb to preserve liberty?

Waves of common crime tend to generate surges against individual rights. Drug trafficking has thinned the Fourth Amendment’s shield against police searches. Organized crime has sharpened the little-known tool of asset forfeiture, in which the punishment precedes the proof as police empty bank accounts and seize property before a trial.

But is terrorism a crime or an act of war? As in periods of wartime, tolerance for risk plummeted after September 11. “Don’t let this happen again,” President Bush instructed his attorney general, John Ashcroft, and with that command, the massive apparatus of government gathered momentum and swerved onto an uncharted course. Instead of waiting and trying to solve a crime after it is committed—which has been difficult enough for the police and the courts—the new strategy aims to solve the crime of terrorism before it occurs.

That requires predictions, and predicting who might be plotting attacks has taken intelligence and law enforcement into a netherworld
of guesswork and nefarious techniques, not just abroad but inside the borders of the United States: ethnic and religious stereotyping, guilt by association, warrantless surveillance, shady informants, secret arrests, entrapment, deportation, and prosecution at such an early stage of an alleged conspiracy that many of those arrested have possessed no weapons, laid no detailed plans, and progressed no further than idle bragging and brainstorming in what they thought were private conversations. True, it’s better to nab “bad guys” while they’re still talking, before they start shooting—but are the guys you’re nabbing really bad? Several juries have been unconvinced, given the prosecution’s scant evidence.

Prevention is demanded because terrorism imposes a sensation of risk more pervasive than most common crime. The impression of vulnerability spreads and lingers far beyond the place and time of the murders. The three planes flown into the World Trade Center and the Pentagon on 9/11 killed nearly 3,000 but terrified millions; a suicide bomber in Israel or Pakistan kills dozens but galvanizes a nation, and in Iraq or India sends a shiver of alarm through an entire religious sect. In sheer numbers, terrorism’s casualties are relatively minor: “About the same number of children worldwide die of preventable causes every twelve hours as people die in acts of terrorism in an entire year,” writes David Rothkopf. “The same number of people around the world die of HIV/AIDS every three days as die of terrorism annually.”
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In the United States, where nearly 43,000 a year die in traffic accidents and 5,000 from food-borne illnesses, 14 of the 14,000 murdered in 2009 were killed in two attacks that might loosely be considered terrorism—13 by an army psychiatrist at Fort Hood, Texas, and one at a recruiting station in Arkansas.
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Fear is not a mathematical calculation, however. It is more like an illness, infiltrated into emotions with techniques carefully crafted. First, terrorism mixes politics with violence by making bloodshed the instrument of a larger purpose: a political goal, a religious dispute, a cause of revenge. So it is driven not by deranged individuals who can be dismissed as aberrations, as a disturbed school shooter might be. It is the tool of a movement—a quality that can turn citizen against citizen by sowing suspicion toward certain attitudes and beliefs, as during the communist witch hunts of the 1950s. The Muslim who prays in an airport, the professor who rails against Israel, the imam who preaches fundamentalism, are all subjects of unwelcome scrutiny.

Second, terrorism turns the common artifacts of everyday life into weapons: a passenger jet becomes a high-speed missile, an automobile becomes a bomb, a shopper in a crowded market becomes a suicidal
explosion. Third, it is ugly and dramatic, devoid of rules and boundaries, willing to rain havoc on a Passover Seder, a wedding, or a Shiite mosque on a holy day. It recognizes no taboos. It can seem ubiquitous by disguising itself to penetrate any zone of safety.

Therefore, it plays into the imagination differently from ordinary street crime. You may think you can avoid getting mugged or murdered by avoiding certain parks at night and some neighborhoods at any time. But persistent terrorism steals that sense of choice. You may create the illusion of control with little tricks, as in Israel during bus bombings in 2001, when some drivers stayed as far from buses as possible. You may reach for power with vigilantism, as after 9/11, when a few Americans attacked turban-wearing Sikhs who were mistaken for Arabs. But you cannot entirely fill the hollow sense of helplessness.

Applying the preventive model to terrorism, then, may reduce the sensation of immediate risk for the public at large. But it increases danger in other forms. It is seductive: If terrorism is so serious as to justify prevention, why not school shootings? Why not drug smuggling? Why not the sexual abuse of children? If certain rights can be waived to head off terrorism, why not other crimes? Once shortcuts are approved to investigate one kind of offense, they gain acceptability for others. Precisely that argument was adopted by the Foreign Intelligence Surveillance Court of Review, which justified the Patriot Act’s permissive monitoring by noting that exceptional circumstances already permit random or wholesale searches in school drug testing, drunken driver checkpoints, and border security inspections. These are all encroachments on the Fourth Amendment’s protections. They are all on a continuum.

Prevention can replace one risk with another. For targeted groups, it raises the risk of arbitrary search and arrest. It undermines the rules and rights of criminal procedure, which are designed to protect not only individual liberty but the fact-finding exercise of gathering evidence and testing it in a fair trial. Without the adversarial justice system pushing the police toward careful investigation, mistakes are more likely, and the threat to society is obvious: If an innocent man is arrested for murder, the real killer remains on the loose.

So the notion that we must give up some liberty for more security, that somehow our safety and our freedom are juxtaposed in a zero-sum game, looks like a false premise. Only after the Soviet Union collapsed, for example, and courts gained a modicum of independence, did Russia’s police have to learn the basics of investigating a crime, compiling evidence, and proving a case. They had little idea how to do it, because
“telephone justice” had been dispensed by calls from Communist Party officials instructing judges on how to rule. There was no jury system—just a judge and two party apparatchiks, called lay assessors, who usually found defendants guilty.

Crime will not be investigated thoroughly unless it has to be. That is the truth across all political systems, from dictatorships to democracies. If evidence cannot be challenged, cops will not check out and nail down the facts. If no right to remain silent is enforced, they will use coercion and base their prosecutions on confessions that may be false. Only a hard, demanding system separating powers and requiring proof can overcome that human impulse to take shortcuts. And if it’s not in place, if the wrong people are locked up, the society is hardly safer.

But the Soviet Union
felt
safe, because the absence of free speech kept real dangers out of sight, festering below the calm surface of censorship. When I lived in Moscow during communism, Russians’ sense of risk was artificially low. Street crime was kept secret. Police didn’t report it publicly, newspapers didn’t cover it, and statistics were classified. “If we wrote about crime in Moscow every day,” a columnist for the government paper
Izvestia
told me in the late 1970s, “there would be as much fear as there is in New York.” Without that fear, Muscovites wandered naïvely at night into high-crime areas where they were sometimes mugged or raped.

Perceived risk and actual risk, then, do not always coincide; one is obvious, the other can be hidden. Just as the freedom to speak openly risks the spread of racial hatred, for example, its suppression only drives bigotry underground, preventing it from being turned out into the sunlight, examined, and possibly cured. Healing does not occur in dark places, and Soviet society did not eliminate racial and ethnic tension by banning the subject of bigotry from public speech. Undiscussed and largely out of sight, it stayed virulent enough to contribute to the Soviet Union’s 1991 breakup along ethnic lines into fifteen separate countries.

This is the paradox of fear. The risks required by liberty are far preferable to what Alexander Hamilton called “the risk of being less free.”

The jarring violations of constitutional principles that have earned the public’s attention during this time of terrorism are hardly unique in the American experience. They are extreme versions of those routinely suffered by people arrested for ordinary crime. Those everyday infringements, less dramatic yet dangerous, slowly erode individual rights by working gradually into precedent and practice. The infringements are similar, the specific cases located at different points along the same spectrum:

• While Internet and telephone users have seen their Fourth Amendment shield against warrantless searches chipped away to catch terrorists, for example, so have motorists and pedestrians, to catch gun-toting drug dealers.
  
• While captives held at Guantánamo Bay and the navy brig in Charleston were initially denied lawyers, so are foreigners who are jailed on administrative immigration charges and cannot afford attorneys. Impoverished Americans charged with crimes get lawyers hired by the government, but in states without well-funded public-defender systems, the attorneys are underpaid, overworked, and often inadequate.
  
• While terrorism suspects rarely get trials, neither do most ordinary criminal defendants.
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  The Bush administration sought to hold hundreds of prisoners indefinitely at Guantánamo without trial, Obama has continued the practice of unending detention, and prosecutors in the United States seek to avoid trials of criminal defendants as well, pressing them for guilty pleas by invoking tougher laws and sentencing guidelines to threaten long imprisonment if they’re convicted in court. They have a choice, at least, but the playing field is tilted so severely that nearly all forfeit their right to trial and take the pleas.
  
• The separation of powers has been undermined both in counterterrorism, where presidential authority has been enhanced at the expense of the legislative and judicial branches, and in the criminal justice system, where prosecutors’ immense clout represents a shift toward the executive branch.
  
• Preventive detention, an inviting antiterrorism tool, has also been practiced in the criminal justice system, although not under that name. Many defendants accused of dangerous crimes are held for long periods before they are proved guilty; they are denied bail, unable to raise bail, or subjected to the delays of overloaded courts.
  
• Finally, torturing terrorism suspects for information stands at the most severe end of a scale of coercion. In a more moderate place on the spectrum, police periodically evade the Fifth Amendment’s protection against forced self-incrimination. Notwithstanding the Miranda warning, people in custody are sometimes tricked and hounded into confessing to crimes they did not commit.
  

Opposite ends of the spectrum are not the same just because they occupy the same spectrum, of course. The difference between torture and trickery is obvious. To think otherwise is to make the argument of the beard: the fallacy that since one cannot say how many hairs a man must grow
before they add up to a beard, there is no real distinction between the bearded and the clean-shaven.

There are distinctions. Yet the continuum of violations represents a gradation of risk to the constitutional enterprise. Even in nonterrorism cases, those who are poor, members of a minority group, foreign-born, or unable to negotiate through the labyrinth of the law are especially vulnerable to being profiled by ethnicity, searched illegally, denied effective lawyers, maneuvered into dubious confessions, blocked from adequately challenging prosecution witnesses, and unable to gather sufficient evidence in their defense. Their rights are damaged less spectacularly than in counterterrorism cases, but damaged they are. Therefore, so are everyone’s.

How far America will stray from its freedoms in confronting both terrorism and common crime is not yet known. How deeply it will invade liberties in search of safety is not resolved. In the past, the country has regained its footing after a time, and even now, amid the threat, those who would enhance the power of the state are meeting the force of those who would defend the rights of the people. Such is the unending struggle of a nation built not on territory or religion or ethnicity, as so many other nations are, but on an idea that requires constant tending.