For the families, friends and neighbors of the victims, 9/11 has one special evil aftermath that can never be erased and redeemed, one that the rest of us fortunately can share only at a remove. The 9/11 plane hijacks and crashings were acts of terror, the modern piracy. They were an offense against humanity and the law of nations, and it was right to seek out the guilty in Afghanistan and elsewhere where we had reason to believe they lurked—a category to which Iraq had never at any relevant time belonged prior to the US-led invasion; whether our invasion has turned Iraq into a international terrorist haven is less clear.
For all of us, 9/11 has a second subtler and yet also evil aftermath—one that was and is avoidable: the making of scapegoats, the punishment and torture of the innocent, the national turn towards fear, suspicion, paranoia, encouraged by politicians with a firmer grasp of self-interest than of the national interest. Where are the leaders who understand that the corrupting effect of fear is more to be feared than those relatively puny forces who try to make us fear them?
9/11 fostered a policy climate, or became an excuse to create a policy climate, that lost any interest in compliance with international law when inconvenient. It remains an excuse invoked to justify domestic policing characterized by increased elements of 'security theater', and unleashed police brutality. This involves disdain for niceties of human rights and even human decency both abroad (Abu Ghraib) and at home (Padilla, Hamdi and many other illegal detentions). Some of the hardest hit at home are immigrants, not all of them in full compliance with visa requirements and thus in some cases not total innocents or totally blameless, but none deserving to become unpersons, or to be shackled for months in solitary confinement without access to counsel.
By scaring the gutless — including notably our leaders — into the abandonment of some of our core ideals, the 9/11 terrorists scored an infinitely more damaging and potentially lasting victory than just one day of mass murder.
Think I am overdoing it? Read the news. Or if you can't read the news, watch the pictures.
You are correct. And it was predictable for those who study history.
On 9/10/01 the conventional wisdom was that the Bush administration was unpopular, ineffective, and divisive. The economy was weakening, a key Senator had defected from the Republicans, and popularity was below 50%.
When I turned on the TV on 9/11 my first reaction was: Bush now has a free pass to push through his agenda. And he did.
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Professor Froomkin:
I would like to make a few comments about this post.
I think it is indeed important that people are made aware of the actual living people, flesh and blood, who are affected by the societal behaviors you speak of in your second paragraph. I found the link to Persons of Interest quite interesting, and a good example (assuming the site’s assertions are true) of how the public can be made aware of an issue.
But despite the hardships faced by some, I still find myself unpersuaded that terror suspects ought to have their rights protected at all stages of the criminal justice process in exactly the same way as do drug dealers and child molestors. I just don’t buy the idea that an anonymous tip that a neighbor is laundering terrorist funds ought to be treated by law enforcement and the judiciary exactly the same as if the tip relates to laundering drug money. This is not to say terror suspects should have fewer protections, but rather that the protection of their rights should be managed differently.
That could mean, for example, to continue to allow looser protections, but under a system where such detentions would receive a greater degree of independent oversight and control. Returning to my simple laundering tip example, it seems reasonable to me that a search warrant or detention might be denied in the drug money situation, but allowed in the terror money case. When that happens, a light should go on, and somebody with the suspects interests in mind “watches the watchers.” A sort of inverse parole, where the government must regularly report on an individual and convince us that further detention and investigation is justified. I don’t claim to have a specific solution in mind, but strongly believe that one can be found, balancing the rights of suspects with our need to protect ourselves from those that want to destroy us.
That said, I’m not sure how much blame we can put on the current administration for the current state of affairs. After all, the current system has resulted in the unraveling of domestic terrorist cells and has potentially saved hundreds if not thousands of lives as a result. I don’t believe that anyone in the executive delights at depriving people of their rights, nor do I believe that none are concerned when innocents get caught in wide nets. What I do believe, is that nobody is really quite sure exactly what to do. The only fair criticism, I think, is that perhaps the current administration hasn’t looked hard enough for workable and just solutions.
But is the legal community providing enough input? We don’t talk about terrorism in UM’s Criminal Procedure classes, which as you probably know focuses on the constitutional issues at stake in these discussions. So if I’m up high in the DOJ, where do I turn? If I have a weak tip on a terror suspect, I have to act differently than I might than on a drug case, but exactly how? I have to act, rather than react, but how can I do it and preserve the suspect’s rights?
Nobody is blameless for the current state of affairs, but I’m not sure its right to simply point out the problems and then accuse the administration of fearful witch-hunting, McCarthyism, or fascism. I think everyone wants to do the right thing, but the right thing hasn’t quite been discovered.
It isn’t at all clear to me that a change of administration (i.e. a vote for Kerry) would change anything. Will a Kerry administration weaken terror investigations for the purpose of preserving suspects rights? I doubt it. If a domestic terror cell slips through the cracks and strikes he and the democrats could kiss a re-election goodbye. Does he have the solution to the problem I’ve alluded to? I certainly haven’t heard it.
In conclusion, I can’t bring myself to blame the current administration for the hardships faced by those documented on the Persons of Interest site. I agree there is a problem, but don’t agree that simply changing the players will fix it in the long run. I feel that we simply do not currently have the appropriate system to deal with terror suspects in a way that balances their rights with ours. These episodes tend to come and go in any society, as the first commentator to this post pointed out. What good does it do to blame specific actors? Isn’t it time that we addressed the problems our legal system has with terror and treason, rather than current personalities, in order to prevent these episodes from repeating, and enable ourselves to better contain them? Even if a change of administration fixes our current ills, it does not prevent the next scare in the future.
Dear Bicklayer:
Until you amend the Constitution to allow mob rule or cruel and unusual incarceration without probable cause of this year’s disfavored groups (at various times it has been terrorists, commies, black outside NAACP agitators, Japanese-Americans, Wobblies, abolitionists, Masons, Jeffersonians, the Bavarian Illuminati, Baptists, and Quakers just to name some of the top ones in history), I’ll stick with one-size-fits-all rights, thank you. Our history teaches us very clearly that every time we have gone overboard in the name of protecting against ‘threats’ ‘fifth columnists’ ‘subversives’ or whatever, we regretted it when we came to our senses. And to those preaching the danger of the moment, the current fear always seems different and more worthy than last decade’s model. I have faith in the strength of this nation. It doesn’t need to stoop so low to survive.
On the question of blame, of course those who make decisions — especially unconstitutional and immoral ones — should be called to account for them. What else, either in a democracy or in any transaction among moral beings?
Morality and law aside, in fact the current system has unraveled remarkablly few if any ‘terrorist cells’ — prosecutions have failed for lack of evidence, juries have not convicted, and in one celebrated case the Justice Dept. had to go back and have guilty verdicts overturned due to savage prosecutorial misconduct. The overwhelmingly large majority of the so-called ‘terrorists’ whose capture is trumpted by this administration are in fact run-of-the-mill visa cases. (One of my colleagues has a paper on this, which I’ve just read in draft.)
So even if the issue were cost/benefit and not protecting the vulnerable, I’d say the case is pretty clear that the current approach is wrong-headed.
Note that none of this addresses the seriousness with which cops should *investigate* tips about terrorism, only the extent to which the government gets to ruin the lives of people based on unsupported claims by those people’s frightened or bigoted neighbors, soon-to-be-ex spouses or business competitors. I’m all for serious investigations about potentially serious threats but that doesn’t mean you get to lock folks up without the usual (not all that stringent) requirement to have and to give reasons. Nor, once they are incarcerated, should they be denied the basic rights that are at the core of our claim to civilization.
And, don’t fool yourself: what we have now is (as an abuse of state power if not perhaps as a mass social phenomenon) much worse than McCarthyism. McCarthy’s victims were not locked up incommunicado in solitary for months without access to counsel.
Yours,
MF
I have read and re-read your reply a few times now. I have also re-read my original comments a few times.
I have concluded several things. First, that it was not fair to characterize my original comments as advocating “mob rule”, but I have faith that your readers can see that for themselves. Second, that we agree on more issues than we disagree, though the tone of your response rings otherwise.
A “one-size-fits-all” model of criminal investigations is one way to handle the issue, sure enough. But as you so emphatically point out, that model fails when stressed as it is now, or as it was during McCarthyism. I cannot find anywhere in your response where you adress this point, which is clearly in my original comment.
In a perfect world, we would not need Miranda warnings or other exclusionary rules. Our cops would respect every suspect’s rights as a matter of honor and duty. For the most part, we have great cops in this country. But we still need Miranda and other protections for those times when cops are stressed by the human drama that unfolds during a stressful criminal investigation. On the other hand, we also have modern rules such as Terry (allowing cops to frisk us) because of the proliferation of violent criminals. As I’m sure you’re aware, these rules were added to deal with the practicalities of the criminal investagotory process. In some cases to protect our rights, others to protect us from dangers.
That said, complaining about the conduct of the system’s actors is not going to fix the problem. How can you stop men who believe that what they are doing is saving lives? The current system is supposed to contain overzealousness, but it fails. We seem to agree on this. So how can you be so certain that there isn’t a middle ground where investigators are given more leeway, but are monitored more carefully?
If you’re a guard on patrol you want a dog with you that bites, but he must be trained to bite the right people and let go when you tell him. Right now we just let our dogs loose with a copy of the Constitution tucked into their leash and we expect them to do the right thing. Not gonna happen. I say we keep tough dogs around, but keep them on leashes. Yelling “bad dog!” doesn’t work on certain breeds.
As you point out, this type of thing is going to happen again and again. What good does it do to put a stop to it, if our system is still such that allows it to happen again? Again, it is not clear that you have addressed this point.
Lastly, one area we disagree on is the danger we face. Perhaps I am paranoid, but it seems that the technology available to terrorists means that a single cell falling through the cracks imperils thousands of lives. My benefit/cost analysis comes to different results than yours, in part because I believe the threat is more serious than you do. I don’t live in fear, but I realize the 9/11 hijackers were right here in South Florida and nobody noticed.
I think a key part of our difference is this: by “investigations” I mean “the gathering of information”. I exclude locking up the suspect in the hopes of later getting probable cause or sweating something out of him. I read you — mistakenly, I hope — to accept this sort of lack-of-probable-cause incarceration. That was, after all, the subject of the post you said you disagreed with. This is a fundamental difference. It is a practice born of fear, and thus my comment about mob rule. The Constitution is an attempt to create brakes against what the Framers called the ‘passions’ of the moment and of the majority. To run around those brakes is unconstitutional and in my view mistaken. I’m all for legal information gathering but that doesn’t mean it’s time to wiretap everyone or lock up large numbers of folks on flimsy evidence in fear that someone, somewhere, might actually be guilty.
The threats we face may be deadly, but they do not go to the heart of our system of government. It is not worth attacking one of the essential elements of a real democracy — serious checks on the power of the government to lock you and throw away the key — to deal even with WMDs that can kill thousands.
John Ashcroft is not inevitable. His misdeeds should not be let off with an , ‘oh, that’s life’ approach. And, it is possible simultaneously to believe we need prophylactic rules, that even these will be bent and broken (and infractions punished), and that individuals can be held to a high standard. To do otherwise is to ensure an even worse outcome.
Don’t set your sights so low! And remember that ‘fear itself’ is more corrosive than most enemies.
Further discussion will probably not bring us closer to consensus on contentious points. But I’d like to ask you about your statement in the original posting:
“Where are the leaders who understand that the corrupting effect of fear is more to be feared than those relatively puny forces who try to make us fear them?”
Do you, aside from gut instinct, have any reason to believe that a Kerry administration would be any more or less problematic on this front than Bush’s?
I’ve never known him to say a word on this subject, utterly silent on Gitmo detentions for example. Further, given that he was a former prosecutor, I would suspect he probably favors strong police powers (he does give himself credit for putting more cops on the streets). We do have his DNC speech, which makes vague references to the Constitution, but I’m not sure if he’s hinting at the issues we’ve discussed here, gay marriage, or both.
I realize that he himself may not have spoken on these issues directly, and may not even have a personal opinion on them. But who would he (likely) appoint to replace Ashcroft, and where does that person stand?
Despite the fact that we are in agreement on the need to curb and punish abuses, at this point I don’t see these issues entering into my criteria for choosing a candidate. Perhaps you can persuade me otherwise.
My confidence in Kerry on these issues stems from two sources.
First, his career as a prosecutor is a plus in my book: I know a lot of federal prosecutors and most of them are not in fact like Ashcroft; many are worried about his abuses of the material witness statute and other things. Plus, Kerry worked to free a man unjustly imprisoned as well as to put folks behind bars.
Second, a personal item: my co-clerk in my first clerkship went on to have a life in democratic campaigns and then appointive office. He is one of the most decent people I know, and a very good judge of character. Over a year ago he told me he was supporting Kerry because he knew him, and trusted him. That goes a long way with me, but I can see why it isn’t the sort of persuasion that transfers.
I don’t know who Kerry might appoint to replace Ashrcroft — one of the previously leading candidates is now his Veep — but I’m willing to bet it will be night and day. Or at least night and cloudy day.
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