Bedenkingen van een Amerikaanse prof in recht.

After 11 September, the US introduced laws that, according to leading American academic Patricia Williams, 'mirror the worst excesses of some dictatorships'

The Bush files - Observer special

Sunday December 2, 2001

Things fall apart, as Chinua Achebe put it, in times of great despair. The American nightmare that began with the bombing of the World Trade Center and the Pentagon, has, like an earthquake, been followed by jolt after jolt of disruption and fear. In the intervening three months, yet another airplane crashed, this time into a residential section of New York City. Anthrax contamination succeeded in closing, for varying lengths of time, all three branches of government. From the tabloids to The New York Times, major media outlets have had their centers of operation evacuated repeatedly. The United States Postal Service is tied in knots. Hundreds of anthrax hoaxes have stretched law enforcement beyond all capacity. Soldiers guard all our public buildings.

Around four thousand Americans have died in planes, collapsing buildings or of anthrax toxin since that morning in September; tens of thousands more have lost their jobs. Some 5000 Arab residents between the ages of 18 and 33 have been summoned for interrogation by the FBI. And twenty million resident aliens live suddenly subject to the exceedingly broad terms of a new martial law. Even while we try follow the president's advice to pick ourselves up in time for the Christmas shopping season, punchdrunk and giddily committed to soldiering on as before, we know that the economic and emotional devastation of these events has only begun to register.

As the enormity of the destruction settles in and becomes less dreamlike, more waking catastrophe, American society begins to face those long-term tests that inevitably come after the shock and horror of so much loss. We face the test of keeping the unity that visited us in that first moment of sheer chaos. We face the test of maintaining our dignity and civility in a time of fear and disorder. Above all, we face the test of preserving the rights and freedoms in our Constitution and its Bill of Rights.

Few in the United States question the necessity for unusual civil measures in keeping with the current state of emergency. But a number of the Bush Administration's new laws, orders and policies are deservedly controversial: the disregard for international treaties and conventions; strict controls on media reports about the war; secret surveillance and searches of citizens* computers; widespread ethnic profiling; indefinite detention of non-citizens; offers of expedited American citizenship to those who provide evidence about terrorists; and military tribunals with the power to try enemies in secret, without application of the usual laws of evidence, without right of appeal, yet with the ability to impose the death penalty. Opportunity for legislative or other public discussion of these measures has been largely eclipsed by the rapidity with which most of them have been pushed into effect. This speed, one must accede, is in large part an exigency of war. It is perhaps also because Mr. Bush has always preferred operating in a rather starkly corporate style. In any event, the president has attempted to enlarge the power of the executive to an unprecedented extent, while limiting both Congressional input as well as the check of the judiciary.

Overall, we face one of the more dramatic Constitutional crises in United States history. First, while national security mandates some fair degree of restraint, blanket control of information is in tension with the Constitution's expectation that freedom of a diverse and opinionated press will moderate the tyrannical tendencies of power. We need to have some inkling of what is happening on the battlefield in our name. On the domestic front, moreover, the First Amendment's protection of free speech, is eroded if even peaceful dissent becomes casually categorized as dangerous or unpatriotic, as it has sometimes been in recent weeks. This concern is heightened by the fact that the war has been framed as one against "terror" - against unruly if deadly emotionalism - rather than as a war against specific bodies, specific land, specific resources.

A war against terrorism is a war of the mind, so broadly defined that the enemy becomes anybody who makes us afraid. Indeed what is conspicuous about American public discourse right now is how hard it is to talk about facts rather than fear.

In a struggle that is coloured by a degree of social panic, we must be very careful not to allow human rights to be cast as an indulgence. There is always a certain hypnosis to the language of war -the poetry of the Pentagon a friend calls it - in which war means peace, and peace-mongering invites war. In this somewhat inverted system of reference, the bleeding heart does not beat within the corpus of law but rather in the bosom of those whose craven sympathies amount to naive and treacherous self-delusion. Everywhere one hears what, if taken literally, amounts to a death knell for the American dream: rights must be tossed out the window because "the constitution is not a suicide pact".

But accepting rational reasons to be afraid, the unalloyed ideology of efficiency has not only chilled free expression, but left us poised at the gateway of an even more fearsome world in which the "comfort" and convenience of high-tech totalitarianism gleam temptingly; a world in which our American-ness endures only with hands up! so that our fingerprints can be scanned, and our nationalized-identity scrutinised for signs of suspicious behaviour.

This brings me to the second aspect of our Constitutional crisis - that is, the encroachment of our historical freedom from unreasonable searches and seizures. The establishment of the new Office of Homeland Security and the passage of the so-called 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 non-citizens.

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, was quoted, in The New Yorker magazine, worrying 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, upon whose own 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 F.B.I. have been 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 third and most distressing area of Constitutional concern has been Mr Bush's issuance of an executive order setting up military tribunals that would deprive even long-time resident aliens of the right to due process of law. The elements of the new order are as straightforward as trains running on time. The President would have the military try non-citizens suspected of terrorism in closed tribunals rather than courts. No requirement of public charges, adequacy of counsel, usual rules of evidence, nor proof beyond a reasonable doubt. The cases would be presented before unspecified judges, with rulings based on the accusations of unidentified witnesses. The tribunals would have the power to execute anyone so convicted, with no right of appeal. According to polls conducted by National Public Radio, The Washington Post, and ABC News, approximately 65% of Americans wholeheartedly endorse such measures.

"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution," says Attorney General John Ashcroft in defense of tribunals. There are a number of aspects of that statement that ought to worry us. The reasoning is alarmingly circular in Ashcroft's characterization of suspects who have not yet been convicted as "terrorists." It presumes guilt before adjudication. Our system of innocent-until-proven-guilty is hardly foolproof, but does provide an essential, base-line bulwark against the furious thirst for quick vengeance, the carelessly deadly mistake - albeit in the name of self-protection.

It is worrisome, too, when the highest prosecutor in the land declares that war criminals do not "deserve" basic constitutional protections. We confer due process not because putative criminals are "deserving" recipients of rights-as-reward. Rights are not "earned" in this way. What makes rights rights is that they ritualize the importance of solid, impartial and public consensus before we take life or liberty from anyone, particularly those whom we fear. We ritualize this process to make sure we don't allow the grief of great tragedies to blind us with mob fury, inflamed judgments and uninformed reasoning. In any event, Bush*s new order bypasses not only the American Constitution but the laws of most other democratic nations. It exceeds the accepted conventions of most military courts. (I say all this provisionally, given that the Bush administration is urging the enactment of similar anti-terrorism measures in Britain, Russia, and that troublesome holdout, the European Union).

As time has passed since the order was published, a number of popular defenses of tribunals have emerged: we should trust our president, we should have faith in our government, we are in a new world facing new kinds of enemies who have access to new weapons of mass destruction. Assuming all this, we must wonder if this administration also questions whether citizens who are thought to have committed heinous crimes "deserve" the protections of American citizenship. The terrorist who mailed "aerosolised" anthrax spores to various Senate offices is, according to the FBI, probably a lone American microbiologist. Although we have not yet rounded up thousands of microbiologists for questioning by the FBI, I wonder if the government will be hauling them before tribunals - for if this is a war without national borders, the panicked logic of secret trials will surely expand domestically rather than contract. A friend observes wryly that if reasoning behind the order is that the perpetrators of mass death must be summarily executed, then there are some CEOs in the tobacco industry who ought to be trembling in their boots. Another friend who works with questions of reproductive choice notes more grimly that that is exactly the reasoning used by those who assault and murder abortion doctors.

"There are situations when you do need to presume guilt over innocence", one citizen from Chattanooga told The New York Times. The conservative talk show host Mike Reagan leads the pack in such boundlessly-presumed guilt by warning that you might think the guy living next door is the most wonderful person in the world, you see him playing with his children, but in fact "he might be part of a sleeper cell that wants to blow you away." We forget, perhaps, that J. Edgar Hoover justified sabotaging Martin Luther King and the "dangerous suspects" of that era with similar sentiment.

In addition to the paranoia generated, the importance of the right to adequate counsel has been degraded. Attorney General Ashcroft's stated policies include allowing federal officials to listen in on conversations between suspected terrorists and their lawyers. And President Bush's military tribunals would not recognise the right of defendants to choose their own lawyers. Again, there has been very little public opposition to such measures. Rather, one hears many glib, racialised references to OJ Simpson - who, last anyone heard, was still a citizen: "You wouldn't want Osama Bin Laden to have OJ's lawyer, or they'd end up playing golf together in Florida."

The tribunals also challenge the right to a speedy, public and impartial trial. More than 1000 immigrants 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.

Finally, there has been an ominous amount of public vilification of the constitutional right against self-incrimination. Such a right is, in essence, a proscription against the literal arm-twisting and leg pulling that might otherwise be necessary to physically compel someone to testify when they do not want to. It is perhaps a rather too-subtly-worded limitation of the use of torture.

While not yet the direct subject of official sanction, torture has suddenly gained remarkable legitimacy. 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 is not "authorized", perhaps it could be used in "emergencies," as long as the person who tortures then presents himself to "take the consequences".

Harvard Law School Professor Alan Dershowitz has suggested the use of "torture warrants" limited, he insists, to cases where time is of the essence. Most alarming of all, a recent CNN poll revealed that 45% of Americans would not object to torturing someone if it would provide information about terrorism. While fully acknowledging the stakes of this new war, I worry that this attitude of lawless righteousness is one that 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--a Haitian immigrant whom two New York City police officers beat and sodomized with a broom handle because they mistook him for someone involved in a barroom brawl-- to Jacobo Timerman in Argentina to Alexander Solzenizhen in the Soviet Union--all victims of physical force and mental manipulation, all people who refused to speak or didn't speak the words their inquisitors wanted to hear, but who were 'known' to know something. In such times and places, the devastation has been profound. People know nothing so they suspect everything. Deaths are never just accidental. Every human catastrophe is also a mystery and mysteries create ghosts, hauntings, "blowback", and ultimately new forms of terror. The problem with this kind of 'preventive' measure is that we are not mindreaders. Even with sodium pentathol, whose use some have suggested recently, we don't and we can't know every last thought of those who refuse to speak.

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 harrassed, never been stigmatized or generalized or feared 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 the intimate and wrong-headed projections heaped upon the maid who is accused of taking something that the lady of the house simply misplaced. Stoked by trauma, 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 enemies who were and will be smart enough to play against such prejudices.

In grief, sometimes we merge with the world, all boundary erased in deference to the commonality of the human condition. But traumatic loss can also mean - sometimes - that you want to hurt anyone in your path. Anyone who is lighthearted, you want to crush. Anyone who laughs is discordant. Anyone who has a healthy spouse or child is your enemy, is undeserving, is frivolous and in need of muting.

When I served as a prosecutor years ago, I was very aware of this propensity among victims, the absolute need to rage at God or whoever is near - for that is what great sorrow feels like when the senses are overwhelmed. You lose words and thus want to reinscribe the hell of which you cannot speak. It is unfair that the rest of the world should not suffer as you have.

This is precisely why we have always had rules in trials about burdens of proof, standards of evidence, the ability to confront and cross-examine witnesses. The fiercely evocative howls of the widow, the orphan, the innocently wronged - these are the forces by which many a lynch mob has been rallied, how many a posse has been motivated to bypass due process, how many a holy crusade has been launched. It is easy to suspend the hard work of moral thought in the name of Ultimate Justice, or even Enduring Freedom, when one is blindly grief-stricken. "If you didn't do it then your brother did", is the underlying force of blood feuds since time began. "If you're not with us, you're against us", is the dangerous modern corollary to this rage.

I have many friends for whom the dominant emotion is anger. Mine is fear, and not only of the conflagration smouldering throughout the Middle East. I fear no less the risks closer to home: this is how urban riots occur, this is how the Japanese were interned during world war two, this is why hundreds of "Arab-looking" Americans have been attacked and harassed in the last weeks alone.

I hear much about how my sort of gabbling amounts to nothing but blaming the victim. But it is hardly a matter of condoning to point out that we cannot afford to substitute some statistical probability or hunch for actual evidence. We face a wrenching global crisis now, of almost unimaginable proportion, but we should take the risks of precipitous action no less seriously than when the grief with which we were stricken drove us to see evil embodied in witches, in Jews, in blacks or heathens or hippies.

Perhaps our leaders have, as they assure us, more intelligence about these matters than we the people can know at this time. I spend a lot of time praying that they are imbued with greater wisdom. But the stakes are very, very high. We cannot take an evil act and use it to justify making an entire people, an entire nation or an entire culture the corpus of "evil".

Give the government the power to assassinate terrorists, comes the call on chat shows. Spare us a the circus of long public trials, say the letters to the editor.

I used to think that the most important human rights work facing Americans would be a national reconsideration of the death penalty. I could not have imagined that we would so willingly discard even the right of habeus corpus. I desperately hope we are a wiser people than to unloose the power to kill based on undisclosed "information" with no accountability.

We have faced horrendous war crimes in the world before. World war two presented lessons we should not forget, and Nuremburg should be our model. The United States and its allies must seriously consider the option of a world court. Our greatest work is always keeping our heads when our hearts are broken. Our best resistance to terror is the summoning of those principles so suited to keep us from descending into infinite bouts of vengeance and revenge with those who wonder, like Milton's Stygian Counsel.

Will he, so wise, let loose at once his ire,
Belike through impotence, or unaware,
To give his Enemies their wish, and end
Them in his anger, whom his anger saves
To punish endless....

· Patricia J. Williams is a professor of law at Columbia University in New York City. Her column, "Diary of a Mad Law Professor" appears in The Nation Magazine. She is the author of Seeing a Colour-Blind Future: The Paradox of Race (Virago Press, 1997). (This is an extended version of the piece that appears in print in The Observer today). http://www.observer.co.uk/libertywatch

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