Lately, I have been thinking a great deal about something grandmother once said.
Rose Burawoy was born in Bialystock, then a thriving metropolis with a substantial Jewish population. She told me once — exactly once, as she never mentioned it again — that she remembered ‘the Cossacks’ running through and killing people in a pogrom when she was a child. She described it as something that had happened to other people, perhaps not far away, not as an eyewitness. (And, indeed, there was a pogrom in Bialystock in 1903, more killings in the area in 1920, and a pattern of killings and other anti-Semitic incidents in the 1930s ). In the retelling at least, my grandmother seems to have been as bothered by what she saw as provincialism, and was happy to escape to the bright lights of Berlin. Her life, and marriages, would later take her to Paris, and London, where she lived when World War II began, and finally to New York, where I think she was happy to be.
This geography explains something my grandmother once said that I find myself thinking of fairly often these days. I vividly recall my grandmother — alone in the family — objecting when I first said I wanted to become a lawyer. Don’t do that, she said. Why not be a doctor? Or a businessman, or anything else that involves a portable skill. A lawyer can only work in one country, and you can’t take your skill with you if you have to leave. ‘What’s wrong with that?’ I asked, ‘I like it here.’ And my grandmother, who usually treated me like a child, and who rarely said anything terribly grave about anything, much less the war — tending to limit her political commentary to how bad it was that old people had to worry about being mugged by the hooligans on the Manhattan streets, and how /insert-conservative-politician/ was good for the Jews because he was strong on defense — gave me a knowing, wise, slightly sad, very grownup look, that said she knew I, the American grandson, was not going to understand, and said, ‘When the Nazis come to America, what will you do then?’.
I laughed, of course. The Nazis were not going to take over America. And she said, quite seriously, ‘That’s what we said in Germany. Germany was the freest most democratic country in the world before Hitler. You’ll see.’
I still don’t think the Nazis are coming. But my grandmother’s question is a galling reminder that in politics, like in the securities markets, past performance is no guarantee of future results.
The people who founded this country called it a great experiment. As a citizen, a lawyer, and especially as a law professor, I have the luxury to think about the rules we use to govern ourselves and each other. Periods of stress do not bring out the best in most people, and current times provide ample evidence of that.
In the past two years, our government has embarked on a course of conduct, and legal argument attempting to justify that conduct, that I find simply horrifying. According to the current Administration, our government can:
- Hold detainees in Guantanamo indefinitely without trial. Hold some of them, including children, in what amounts to solitary confinement for years. Hold them abroad, because the Administration hasn’t the guts or the decency to bring them to the US, where they would have rights to a hearing, to a trial, to judicial supervision of the conditions of their confinement. The government argues it can hold them during “wartime” — and as this war is against an ism, it could go on for ever.
- Try some detainees in Guantanamo — the lucky ones? — under rules of court which, while not barbaric, are sufficiently tilted against the defendants to cast doubt on the fairness of the proceeding. To subject them to a possible death penalty in a non-jury trial — and to cut off any chance of appeal to the Article III courts we usually expect to be the defenders of liberty and justice.
- Perhaps you think that this is wartime, and the nation must protect itself. While it’s possible, I suppose, to imagine a circumstance in which we could not afford fair trials, it’s impossible for me to believe we are anywhere near that stage.
- Or perhaps you think, as a number of recent judicial decisions suggest, that our government’s constitutional obligation to act decently applies only to its dealings with US citizens and non-citizens in the US itself. I disagree — I think our government has only the powers that emanate from the Constitution, and I don’t find the power to act unjustly to be among them. (Even if I’m wrong about that, I’m saddened that this Administration is willing to so cavalierly drain our moral capital on bad trials, rather than demonstrating that we will give a fair hearing to even those we believe to be our enemies. But that’s another issue, for another day.)
- Whatever you may think, this Administration clearly believes it has the legal right to treat US citizens as badly as it treats the “detainees” in Guantanamo. And not just US citizens the government thinks its local allies captured during a foreign war. No, this Administration, this Attorney General, this occupant of the White House, argue that they have the right to scoop up any US citizen, on any street anywhere in this country, and lock them up indefinitely. We have rules about how long an arrested person can be held without charges, and without lawyers. In the case of Jose Padilla, this Administration has violated all those rules. What it did was shockingly simple: when the time came to either charge Padilla with a crime, or let him go, the government removed him from the criminal justice system and tossed him in a Navy brig. And there he sits, while the lawyers fight about whether he’s entitled to be charged, and to have assistance defending himself.
I wish I were being over-dramatic here. Yes, the country has been attacked in a vicious and terrible way, by bad people. No doubt there are more people out there who wish us harm for both real and imagined ills. It is good to be careful. It is not good to trash our own values. Benjamin’s Franklin’s line — that “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” — is quoted so often that it risks losing its power and fading into cliché. But it is still true after almost 250 years.
When a government claims the power to grab anyone off the street and lock them up indefinitely without trial, watch out.
I still think my grandmother was wrong about the Nazis taking over in America. But I’m reluctantly coming around to believing that she was right about my complacency. Our liberty is not now something we can take for granted. While we face somewhat amorphous threats from abroad — threats I am confident we can endure and overcome — we face increasingly concrete threats to our liberty at home. If we do not face the Gestapo, we nonetheless face a security apparatus that has claimed the right to methods that until recently we would have called Gestapo tactics. I am not predicting a pogrom, and solitary confinement, however unpleasant is not the Final Solution.
But I do not feel safer, nor even all that safe, when anyone — no matter how well-intentioned — claims that they can put me in a Navy brig, incommunicado, indefinitely, without charges or trial, just because they can satisfy themselves — and no one else — that I deserve it.