Defending Freedom By Suspending Liberty

Only those with a valid claim to geezerhood are old enough to remember a pre-Miranda-warning America. That was nearly 40 years ago, when men were men and cops were brutes. That was back in the era when the police administered what was then called “the third degree” often enough that everybody knew it was slang for a beating with telephone books or rubber truncheons–instruments that could deliver pain without leaving tell-tale bruises.

In pre-Miranda America, the cops could and did hold prisoners without telling the friends, relatives and lawyers looking for them where they were. In some cities, prisoners would be taken from one police station to another to thwart the enforcement of a writ of habeas corpus. Confessions extracted from prisoners by force, outside the presence of a lawyer, were admitted in criminal trials. In that era, discrimination and harassment consisted of more than bruised feelings and hate speech. Hateful and injurious acts were performed on persons of color and others generally referred to in that less-than-enlightened period as the poor and downtrodden.

Under the guise of national security, the Bush administration has taken a series of strides back toward the not-so-good old days with its announcement that foreign nationals are now subject to being picked up by the federal police, imprisoned for indefinite periods of time, kept incommunicado and interrogated without benefit of legal representation–and, for all we on the outside know, with benefit of sap and blackjack. If the last seems a bit overblown, please remember that, in addition to the introduction of the lettre de cachet by the U.S. government, various conservatives have been publicly musing on the advantages of torture in questioning non-Americans. Apparently, because we’ve been attacked and 3,000 of our citizens murdered, we are entitled to exempt ourselves from the standards of common decency. We might hope that a nation which had sustained such a sickening attack would be more, not less, scrupulous in its behavior.

Instead, the Bush administration tells us that some people will be put in chains and tried by military tribunals. It is assumed that the people subject to this rough handling will also be non-Americans, although that’s not so sure. In general, the administration seems to be telling us that we who are lucky enough to be citizens are safe and needn’t worry about midnight raids by the federal constabulary–but for citizens of any more or less defenseless country, the word is take care and take cover . Non-Americans better hope like hell that Mr. Bush and Attorney General John Ashcroft don’t get a message from their personal Savior (or Saviors) to go after them.

A big thing is being made of the distinction between American citizenship and the lesser, more exposed status of non-citizens, be they legal immigrants, illegal immigrants or people in other countries whom, for whatever reason, the United States government swoops down on. Our position seems to be that when it comes to treatment by the federal government, American citizens get the full protection of the Bill of Rights to the extent compatible with national security; non-Americans get sloppy seconds. We live in a two-law world–one for us and another for them. The Western world has seen this kind of thing before. In the ancient world, the formula of Civis romanus sum (“I am a Roman citizen”) got the speaker virtual immunity from all law save that of Rome.

Although the United States is not an empire as empires have been known in the past, its government and its people have cultivated an imperial outlook, an imperial sense of prerogative and an imperially solipsistic view of the planet. Not only is there one law for us and another for the rest of the world, but our losses are dearer, our sadnesses sadder. Our wounds and our deaths are more painful and tragic than the wounds and deaths of others. In Panama, people still mourn those who died at the hands of the U.S. armed forces during the 1989 invasion. Somewhere between 300 and 500 citizens of that impotent little nation perished. The Panamanians, having less money and equipment, do not know exactly how many died when the Americans attacked. They can’t afford the costly excavations that we have done at ground zero–and yet, if the two countries are compared in size and population, Panama’s loss is comparable to ours. At this point, however, the similarities end. We have been avenged; the American officials responsible for killing the Panamanians have not been called to account, and as for millions in compensation, how does “not one thin dime” sound?

For all the new wrinkles in the meting out of justice–be it military tribunals or clapping non-Americans in jail on administrative whim–the lawyers cite precedent. Since you can get a lawyer to tell you that anything you do is O.K., they’re hardly the people to take as authorities, except perhaps for justifying rascality. Finding a precedent for doing something which isn’t right counts for little outside a court of law. It is unbecoming a nation that prates about liberty, freedom and justice for all. The Bill of Rights is like foreign aid–something we like to talk about, but are too stingy or too indifferent to give to ausländers .

In the discussions of lettres de cachet , secret trials, trials without juries, trials without knowing the accusations or seeing the evidence, the names of three Presidents are spoken: Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt. They–three of our greatest–did it, therefore it is O.K. A lousier argument ad hominem I can’t conceive of–and as for viewing their acts as applicable precedents, their situations bore no similarity to ours.

In explanation of his suspension of the Constitutional guarantee of habeas corpus, Lincoln is famously quoted asking, “Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” Compare his circumstances with ours. Eleven states had left the Union and were making war on the United States. It was a desperate situation calling for desperate measures. The destruction of the W.T.C. and flying an airliner into one side of the Pentagon may have been despicable, hateful, homicidal and horrendous acts, but they didn’t put the government at peril; they didn’t endanger the nation. As many died in one Civil War battle as perished at the World Trade Center. We are not fighting for our collective lives; we are fighting a very, very, very, very small group of terrorists. Some sense of proportion is called for in these lava flows of patriotic gore.

We are not fighting another nation or national government unless it is (or was) the Taliban–a military power so puissant and intimidating that more journalists than American soldiers died in combat. In actuality, you may recall, no American soldiers died in combat: What few fatalities we have suffered were self-inflicted, except for the C.I.A. agent who was killed in a P.O.W. internment-camp insurrection. That’s comparable to the Civil War? That gives George Bush the same foundation for the lawlessness of the military tribunal as it gave Abraham Lincoln? (The military tribunal, despite its high-sounding name, is nothing more than take-‘em-outside-and-shoot-‘em justice. There are no established rules of procedure; they make the rules to fit whatever the foregone conclusion is.)

Woodrow Wilson’s gagging the press, chucking people in jail and ending free speech during World War I is also used as a precedent for arguing that John Ashcroft should do the same. If anything, the Wilson repressions should warn us against allowing patriotic transports to sweep away our always-frail individual liberties. No war since the Civil War–not even the Vietnam War–was as unpopular as World War I. The arbitrary acts of Wilson and his attorneys general were what drove Constitutionalists to establish the American Civil Liberties Union; to this day, many historians here and abroad consider them to have been a tragedy whose consequences we’re still living with. Who knows what might have happened had dissent against the war been tolerated? The Wilson precedent argues against what Mr. Bush and his fellow authoritarians are doing.

The last President invoked is Franklin Roosevelt and his putting tens of thousands of American citizens of Japanese extraction in concentration camps. We have been treated to much speechifying linking Sept. 11 with Dec. 7, 1941–as if a bunch of scraggly-ass fanatics running around a mountain range 10,000 miles from New York in Fieldcrest towels with rusty rifles are the equivalent of the Japanese Imperial Navy, Adolf Hitler and the German army. The terrorists can kill and maim a few of us here and there, but they are not a serious threat. They jump out of the dark and murder us because they are too weak to challenge us. They do what they do because they have no warplanes, no aircraft carriers, no missiles, no tanks or cannons. They can drive us crazy with rage and grief, and that’s all they can do.

Imprisoning Americans of Japanese origin was as stupid as it was unjust, and there were many people at the time who knew it, but none of them was sitting on the Supreme Court. The courts will always fail you when the mob is after you. Here and there, you may find a judge who will rule in favor of liberty. Judge Learned Hand found in favor of free speech against Woodrow Wilson, but the robed cowards sitting in the appellate courts above Judge Hand made short work of him.

When push comes to shove, don’t count on the courts. Liberty is our personal responsibility. No one will protect us against Mr. Bush and Mr. Ashcroft but ourselves.