Trampling Over Rights In the Name of Freedom

The other day, I did something I hadn’t thought I’d do: I got on the Internet and sent my $35 membership fee to the ACLU. Years ago I’d been a member, but when the ACLU started getting goofy I decided I had something else to do with my non-tax-deductible dollars. I’m referring to the organization’s defending the North American Man/Boy Love Association in a lawsuit involving NAMBLA’s Web site. Doubtless the bugger-boys do have a First Amendment right to post whatever on their Web site with impunity, but I’m not such a purist that I won’t stand for a little bit of infringing here and there.

But there’s only so much infringing I can look upon with equanimity. Hence, I was thrown badly off-balance when it came to light that Abdullah al-Muhajir, a.k.a. Jose (Pucho) Padilla, the dirty-bomber boy, was declared a non-American and chucked into a Navy brig, where he’s to be kept without benefit of counsel or visitors until the War on Terrorism ends, which will be about the same time that the War on Drugs ends.

Now that the lettre de cachet has been made an administrative tool, an unknown number of other persons have been secretly arrested and put somewhere. Doubtless the code name for making people vanish off the streets is something like Operation Freedom Shield. The rumor is also about-but you may be sure it’s nothing more than malevolent gossip-that John (Fig Leaf) Ashcroft sought out the advice of the ancient Augusto Pinochet before throwing Operation Freedom Shield into high gear. We can suppose it’s merely a matter of time before the wives, husbands and children of the American disappeared may be seen picketing the White House-but no, that can’t be, since you can’t get near enough the place to lay a petition on the doorstep.

People who defend snatching other people off the street and putting them in jail without the formality of a public trial often quote Supreme Court Justice Robert Jackson (1892-1954), who warned the others on the bench that “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Constitutional Bill of Rights into a suicide pact.” So if we accept his dictum, we need only decide what is the dollop of practical wisdom to be applied here. This is clear enough from the apodosis of his statement, the “suicide pact.” In short, failure to do a little impinging on a right or two will result in the destruction of the state. That, of course, is the government’s position-Lady Liberty has the blade of a knife at her throat.

But does she?

That depends upon how you assess the danger. Terrorists can do terrible things, but the one terrible thing they can’t do is bring down the United States of America. That just ain’t gonna happen. Put it in perspective: We went through the entire Cold War without once resorting to lettres de cachet . The Soviets, you may recall, really did have weapons of mass destruction, thousands of them, in rockets that their space program proved would work if fired. They had thousands of warplanes, very good ones evidently, and the same for their tanks. They also had a large and successful espionage operation going in the United States-and with all that and more against us, practical wisdom did not demand skipping around the rights most of us believe are ours by birth and citizenship.

Since 1865, only one instance of chucking people in jail, trying them in a military court and frying them has occurred. That was almost 60 years ago, when two small groups of German saboteurs were landed from a submarine on the East Coast. One of them had been born in the United States, but that didn’t save him. At the time, this country was at war with what at that point was considered the most powerful military machine in the world, and some even said in the history of the world. Under those circumstances, a case could be made for a little snippage of the Bill of Rights.

Contrast those circumstances with Pucho’s, a minor criminal who may or may not have gotten religion (Islam), but who had no bomb, dirty or otherwise, or any other weapon of mass destruction. Some high American government officials have said that he wasn’t even involved in a plot, but was hanging out in dubious Middle Eastern places with people of the worst sort. One newspaper report had it that the only piece of evidence against this guy is that he was looking up dirty bombs on the Internet.

It’s also said that this man has been “linked” to Al Qaeda. Well, maybe, but that verb link is being slung around liberally. What does being “linked” to Al Qaeda mean? A card-carrying member? Do they have formal membership? Short of somebody telling you, “Yup, I’m one of them there fellas,” how does one distinguish an Al Qaeda member-or linkee, for that matter-from a hundred million other Arabs or Islamicists? Under what used to be the rule of law in the United States, all of this would have come out during the trial, of which there will be none for Pucho.

Of late, we’re hearing on the telly that all the government wants to do with Mr. Padilla/al-Muhajir is question him. No Miranda rights for this puppy, no lawyer, and no witnesses when they ask him the questions. So how might this man be interrogated? The Washington Post put that question to an F.B.I. official and got this quote: “We are known for humanitarian treatment, so basically we are stuck …. Usually there is some incentive, some angle to play, what you can do for them. But it could get to that spot where we could go to pressure … where we won’t have a choice, and we are probably getting there.” The article went on to say that “alternative strategies under discussion are using drugs or pressure tactics, such as those employed occasionally by Israeli interrogators, to extract information. Another idea is extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture.”

So for all we know, Mr. Padilla/al-Muhajir may have already been shipped out of the country to some place-I can’t imagine where-where U.S. aid has been used to purchase a sufficient supply of thumb screws. Another way to squirm around the hesitations of the overly scrupulous is to change the definitions of things. A recent article in The Wall Street Journal by a churl of a lawyer disposes of any second thoughts those burdened with a queasy conscience might be entertaining with these words: “the interrogators have been barred from using one of the most obvious tools-truth serum … the serum has not been used out of concern that doing so would amount to torture. And torture is ‘cruel and unusual punishment’ prohibited by the Eighth and Fifth Amendments …. But the use of truth serum has more in common with wiretaps and other forms of surveillance than it does with torture. Used to search for hidden information about criminal activity, it would more sensibly be governed by the ‘unreasonable search and seizure’ clause of the Fourth Amendment …. Torture inflicts physical or psychological suffering. Truth drugs … are actually powerful painkillers …. Not only do they not hurt, they tend to make the subject feel giddy …. Cruel and unusual punishment this is not.” The article is appropriately illustrated with a pen-and-ink drawing of a hypodermic needle. They think of everything these days, don’t they?

When I was a lad, the comic books had drawings of handsome young Americans strapped to a table, but in those far-off days the questioner advancing on our hero was always a Nazi or a Communist. If we did such things, they were kept secret out of shame, and perhaps a lack of practical wisdom.