Civil Liberities, where did they go?

here is an interesting short piece by Patricia Williams on the consequences
of the new powers given to the repressive state apparatus to "fight
terrorism."George Bush is sounding more Hitlarian every day. now he is
leading, not the free world, but "civilization." i can still remember the
good old days when the USSR was the "leader of world terrorism." wasn't this
the Reagan line?

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The New USA PATRIOT Act - By Any Means Necessary

By Patricia Williams

>From the November 26, 2001 edition of The Nation

The new 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 noncitizens. 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, worried in The New Yorker 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, on whose 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
primarily 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 events of September 11 were a tremendous failure of
intelligence, as well as a monumental embarrassment for
law enforcement. At the same time, we must not allow
our sense of helplessness in a teetering, unruly world
to distort us. In startling numbers, Americans suddenly
seem willing to embrace profiling based on looks and
ethnicity; detention without charges; searches without
warrants; and even torture and assassination. We want
to open up the hearts of those all around us, peer in
and see for ourselves what evil lurks in the hearts of
men, women and neighbors. But the difficult reality is
that no such measures were apt to have revealed the
World Trade Center hijackers; no such measures were
likely to have prevented Timothy McVeigh's bombing of
the federal building in Oklahoma City.

Prophesying wrongdoing, particularly of those with no
history of mental illness or violent criminality, is
guesswork at best. No one foresaw the attacks on the
World Trade Center because well-financed,
professionally trained operatives spent years planning,
strategizing and coordinating that effort. The sad and
unpalatable truth is that preventing surprise attacks
of that sophistication may never be possible. If the
risk ever could be reduced, it will require not so much
the identification of "suspect" profiles but the kind
of cross-cultural fluency and diplomatic skill of which
the intelligence community has confessed it has an
unfortunately short supply.

Yet in recent weeks, student demonstrators, global
justice workers, civil libertarians, animal rights and
peace activists have been characterized as terrorist
sympathizers. More than 1,000 people 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.
And neighborhood watch groups have geared themselves up
with troubling expressions of vigilantism.

Most alarming of all, a recent CNN poll has revealed
that 45 percent of Americans would not object to
torturing someone if it would provide information about
terrorism. 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 should not be "authorized," perhaps it could be
used in an "emergency," as long as the person who
tortures then presents himself to "take the
consequences." The free enterprise version of torture,
I guess we'd have to call it.

While fully acknowledging the stakes of this new war, I
worry that this righteous lawlessness is not new but
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 in New York City to Jacobo Timerman in
Argentina to Alexander Solzhenitsyn in the Soviet
Union--all victims of physical force and mental
manipulation, all people who were "known" to know
something.

The problem with this kind of "preventive" measure is
that we are not mind-readers. Even with sodium
pentothal, whose use some have suggested recently, we
don't and we can't know every last thought of those who
remain silent. 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 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 wrongheaded projections heaped upon the maid
accused of taking something that the lady of the house
simply misplaced or the wayward child stole. Stoked by
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 foes who were and will
be smart enough to play against such prejudices.

Patricia J. Williams is a professor of law at Columbia
University and writes The Nation's Diary of a Mad Law
Professor column.

© 2001 The Nation Company, L.P.



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