The Shipler Report

Church, State, and Santorum

2012-03-01T19:25:00.001-05:00

By David K. Shipler

Given the history of religious persecution in colonial America, not to mention elsewhere in today’s world, it’s hard to think why Rick Santorum and his acolytes would so zealously wish to undermine what President Thomas Jefferson in 1802 called the Constitution’s “wall of separation between Church & State.” Jefferson coined the famous, controversial phrase in answer to a worried letter from leaders of the Baptist minority in Connecticut, where religious freedom was not an inherent right but merely a privilege granted by the legislature—one that could be withdrawn.

It had also been Baptists, in Virginia, who had inspired the First Amendment. Baptist preachers there had been jailed at the behest of the Anglican Church, and the growing Baptist voting bloc feared oppression by the fledgling federal government. Their leaders pressed a certain congressional candidate in 1788—James Madison—to abandon his ambivalence about amending the new Constitution. Madison hadn’t seen the need for amendments spelling out specific rights, but he did see a need for votes in a tough election. We know the result: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

That people of religious faith campaigned for this provision is perfectly understandable in light of the colonists’ experiences. Although the Bill of Rights restrained only the federal government at the time, not the states, it struck a chord. Every right that was articulated had derived from its violation, either in the colonies, in England, or in the broader history of torture and condemnation without due process.

Most of the colonies were established to promote particular denominations, as Steven Waldman documents in his book, Founding Faith. Virginia deported “Popish priests,” forbade the entry of Quakers, banished Puritan clergy and Jews, and denied Catholics the right to hold office unless they took an oath to the Church of England. North Carolina, South Carolina, and Georgia were also anti-Puritan, dominated by the Church of England.

New England, by contrast, favored the Puritans and their Congregational Church and made it illegal to be a Quaker. In Massachusetts—where the Puritans viewed church and state as intertwined—Quakers were whipped and hanged. Only members of Congregational churches could vote, not Catholics, Jews, or others.

Maryland was "established explicitly as a refuge for Catholics," Waldman notes. It tolerated Protestants but prescribed the death penalty for anyone who did not believe in Jesus Christ. When Protestants took over the government, they granted the Church of England official status and paid for churches and clergy with taxes. Catholics were barred in 1700 from inheriting or buying land. Priests were sentenced to life in prison. Catholic worship was prohibited in 1704, and, as Waldman reports, a Maryland law in 1715 required children of a mixed marriage to be removed from a Catholic mother if her Protestant husband died. In 1718, Catholics were denied the vote unless they swore allegiance to the Church of England.

Santorum is Catholic. He should study this history. One supposes that if human beings had made inexorable progress toward enlightened tolerance during the last three hundred years, we would have nothing to fear from mixing religious faith and governmental power. But all you have to do is look around the world—at Egypt and Iraq, at Israel and Sudan, and even inside American attitudes—to see how dangerous it would be to mingle church and state.

It could be argued that the country has come a long way, given that a Catholic presidential candidate can forget the anti-Catholic bigotry that propelled John F. Kennedy half a century ago to reassure voters, in his speech celebrating the wall of separation, that he would not be taking orders from the pope. At the time, many Americans were afraid that the hierarchical church would dictate a Catholic president’s policies. Kennedy declared categorically, “I believe in an America where the separation of church and state is absolute.”

That this affirmation of a founding principle makes Santorum want to “throw up” might indicate that today’s America is well past its own history, that this society has extinguished the impulses of divine certainty that drive one religion to elevate its truth over another’s—in other words, that people have achieved the nirvana of open-minded acceptance for the vast array of difference and diversity in the American landscape.

Luckily, we don’t have to take that gamble as long as we have a Constitution.

‘I Confess!’ Why Do People Admit to Things They Haven’t Done?

2012-02-23T17:41:00.002-05:00

By David K. Shipler
(Published in the New York Times Sunday Review of Feb. 26, 2012, online Feb. 23)

Several months after Antonio Ramirez was shot seven times in Oakland, Calif., the police picked up a frightened 16-year-old named Felix, isolated him in an interrogation room late at night without a lawyer, rejected his pleas to see his mother, and harangued him until he began to tell them what he thought they wanted to hear.

They wanted a diagram of the crime scene, he later told his court-appointed lawyer, Richard Foxall, but whatever he drew was so inaccurate that the police never produced it. When he described escaping in one direction after the killing, they corrected him, because they knew from witnesses that the shooter had gone the opposite way. When he didn’t mention an alley nearby, they told him about it, and he incorporated it into his statement. “Now we’re getting somewhere,” said one officer, as Felix recalled to his lawyer.

So, they demanded, where was the gun? Felix denied having a gun. “That’s when they really got out of control and started yelling at him,” Mr. Foxall said. “He started to feel personally threatened.” Slyly, he made up something demonstrably untrue: that he had left the gun with his grandfather. “I thought this was brilliant,” his lawyer said, because it discredited the tale he was concocting. “He doesn’t have a grandfather. Both grandfathers are dead.”

Once the police had badgered a rough murder confession from Felix, they taped it. Yet the confession lacked a critical detail — one that officers neglected to feed to him. Felix learned it three days later in court when he was handed the charge sheet and saw the date of the crime. He stared at the document and realized that he had the perfect alibi: On the day that Antonio Ramirez was gunned down, Felix had been locked up in a juvenile detention facility for violating probation in a case of theft.

The murder charge was dropped, of course, and Mr. Foxall was greatly relieved. “I would have hated to have had to try the case,” he said. “It would have been very scary. Juries don’t want to believe that somebody will confess to a crime he didn’t commit.” Judges don’t want to believe this either. In fact, according to Mr. Foxall, the juvenile commissioner in Felix’s case said, “Well, I don’t understand — why would he confess?”

If you have never been tortured, or locked up and verbally threatened, you may find it hard to believe that anyone would confess to something he had not done. Intuition holds that the innocent do not make false confessions. What on earth could be the motive? To stop the abuse? To curry favor with the interrogator? To follow some fragile thread of imaginary hope that cooperation will bring freedom?

Yes, all of the above. Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill or mentally retarded, and suspects high on drugs or drunk on liquor. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they just go along with the interrogator. Mature adults of normal intelligence have also confessed falsely after being manipulated.

False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence, according to the Innocence Project. Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions surely exists. If nearly a quarter of overturned convictions involves a false confession, police interrogations are creating an epidemic of injustice.

Officers are taught to use all the tricks and lies that courts permit within the scope of the Fifth Amendment’s shield against self-incrimination. John E. Reid & Associates, which has trained thousands of interrogators, suggests that a suspect be induced to waive his constitutional rights to silence and counsel by giving him the famous Miranda warning “casually” and not immediately after arrest when he is “defensive and guarded” and “more likely to invoke his rights.” When a skilled questioner splices it nonchalantly into conversation, the warning’s empowering message of choice can be lost on a suspect. Many false confessors have been routinely Mirandized in this perfunctory manner.

To get people talking, the Reid training also recommends questions that imply leniency without making explicit promises and that reduce moral responsibility by blaming peer pressure: “Was this your idea or did your buddies talk you into it?” Interrogators are advised to pretend to have evidence but not to fabricate it. A suspect can be shown a card bearing a latent fingerprint and be told: “This is your fingerprint. We found it inside that stolen car.” That’s been allowed by courts if the police officer puts his or her own print on the card but not if the officer fakes it with the suspect’s print. Admissions produced by these tactics may be true or untrue.

A cunning lie generated a false confession from Martin Tankleff, 17, who found his parents one morning in their Long Island home slashed and stabbed, his mother dead, his father barely alive. The boy called 911 and was taken for questioning. Getting nowhere, Detective K. James McCready decided on a trick. He walked to an adjacent room within hearing distance, dialed an extension on the next desk, picked up the phone and faked a conversation with an imaginary officer at the hospital. He went back to the son and told him that his father had come out of his coma and said, “Marty, you did it.” In fact, Seymour Tankleff never regained consciousness and died a month later.

In experiments and in interrogation rooms, adults who are told convincing fictions have become susceptible to memories of things that never happened. Rejecting their own recollections through what psychologists call “memory distrust syndrome,” they are tricked by phony evidence into accepting their own fabrications of guilt — an “internalized false confession.”

That is what happened to a shaken Martin Tankleff, and although he quickly recanted, as if coming out of a spell, he was convicted and drew 50 years to life. He spent 17 years in prison before winning an appeal based on new evidence that pointed to three ex-convicts. But they have never been tried. The killers of the Tankleffs remain at large, as do other criminals who have been spared by the clever police interrogations that imprison innocents.

There are possible remedies. After Felix’s false confession, the Oakland Police Department began video recording “as soon as a homicide suspect enters the interview room, as opposed to only taping a portion of the interview,” said Sgt. Chris Bolton, the police chief of staff. Some lawyers worry nonetheless that judges won’t watch hours of subtle coercion, and that jurors will still find the taped confession decisive.

The police could be prohibited from lying about nonexistent evidence; from inducing a suspect to imagine leniency; from questioning minors without a parent or a lawyer present. They could be required to corroborate a confession with stringent evidence.

Finally, post-conviction challenges of confessions could be assigned to judges and prosecutors other than those who tried the original cases. The natural unwillingness to admit a grave error should not have to be overcome for justice to be done.

Adapted from Rights at Risk: The Limits of Liberty in Modern America, by David K. Shipler

A Lesson for Candidates

2012-02-13T17:52:00.003-05:00

By David K. Shipler

If political candidates want a quick lesson in how to speak to both the hopes and the hardships of America, often in a single sentence, they would do well to spend a little contemplative time at the new memorial to Martin Luther King Jr. on the Tidal Basin in Washington, D.C.

In his day, King could probably not have been elected to much of anything, even if he’d had such an aspiration. But his words of nearly half a century ago, engraved into the memorial’s semi-circle of dark granite, reverberate now in haunting harmony with the yearning of the country.

“We shall overcome because the arc of the moral universe is long, but it bends towards justice,” he said in 1967. “Darkness cannot drive out darkness, only light can do that. Hate cannot drive out hate, only love can do that,” he said in 1963. “I believe that unarmed truth and unconditional love will have the final word in reality,” he declared in his 1964 Nobel lecture, accepting the Peace Prize. “This is why right, temporarily defeated, is stronger than evil triumphant.”

This is fresh air in an election season polluted with propaganda, vacuous rhetoric, and encoded appeals to bias. We have heard enough of that kind of thing from Romney, Gingrich, and Santorum to require no repetition here. Even President Obama, the most eloquent writer to inhabit the White House since John F. Kennedy, cannot quite match King’s skill in weaving together the problem and the solution, the defining failure with the soaring promise.

For King, it was always an inclusive promise. “Injustice anywhere is a threat to justice everywhere,” he said in 1963. “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” Then, in 1967: “If we are to have peace on earth, our loyalties must become ecumenical rather than sectional. Our loyalties must transcend our race, our tribe, our class, and our nation; and this means we must develop a world perspective.”

Very few leaders striving for an end to the bondage of hatred display such generous decency; Nelson Mandela also comes to mind. Fighters for equality rarely mobilize the majesty of language to speak to the perpetrators along with the victims. This uncommon appeal to the better part of the national soul is so out of tune with everyday political speech that the inscriptions stop you. They hold you. Only the children on an unseasonably warm Saturday afternoon can run past them. Adults pause for pictures, gather their families of every race and age: black and white and Asian and mixtures so thorough they defy convenient categories.

Yet it is not a solemn place. It is a festival. Relaxed laughter, comfortable delight, fresh air. An interracial couple walks arm in arm. A circle of teenagers is led in discussion by a young man wearing a yarmulke.

Much controversy has engulfed the paraphrased and distorted quotation that appears on the northern side of the great white piece of granite from which a towering King emerges. On the southern side is carved his declaration: “Out of the mountain of despair, a stone of hope.” Like Michelangelo’s unfinished “slaves” in Florence, the stone has not yet yielded, has not entirely released the human form into completion.

“I Was a Drum Major for Justice, Peace, and Righteousness,” reads the inscription on the other side of the stone. “The quote makes Dr. Martin Luther King look like an arrogant twit,” said the poet, Maya Angelou, in calling for a change, which the National Park Service plans to make. “He was anything but that. He was far too profound a man for that four-letter word to apply.”

King’s actual statement, in a sermon at his Ebenezer Baptist Church, was this: “If you want to say that I was a drum major, say that I was a drum major for justice. Say that I was a drum major for peace. I was a drum major for righteousness. And all of the other shallow things will not matter.”

All of the shallow things being spoken by those who would lead us do not matter. Let them visit the memorial on an unseasonably warm Saturday and take the time to read carefully.

“We must come to see that the end we seek is a society at peace with itself, a society that can live with its conscience.”

The Tattered Safety Net

2012-02-02T14:56:00.001-05:00

By David K. Shipler

Mitt Romney’s remark that the poor don’t need his concern because they have a safety net has triggered worry on the right and glee on the left that he’s emerging as an uncaring, unelectable patrician. But the more important issue is the myth that a safety net even exists—the widely accepted notion that the fragmented, underfunded programs to address poverty actually rescue falling families from destitution.

To give Romney his due, he said that “if” he found holes in the net, he’d “fix” them. Let’s take him up on that. Since he doesn’t already know about the gaping holes through which 46 million Americans have fallen into poverty, perhaps he’ll want to talk with a few such folks on the campaign trail. Then, all he’d have to do as president is summon up the billions it would take to do the job—a worthy investment, but not one that Republicans have ever been willing to make.

Look at housing, which often begins a chain reaction of devastating problems. The poor don’t typically have mortgages that they can’t pay, but they have rent that they can barely pay. Government eases the burden for many, but many more are lined up all over the country on long waiting lists for public housing and vouchers that pay part of their rent for privately owned apartments. With shortfalls in government funding, there is virtually no hope that they will get to the head of the line for years, if ever, in most places. And while they wait without subsidies, they have to fork over large chunks of their incomes for rent, sometimes as much as 50 to 70 percent.

Writing the rent check is not optional. Neither is the car payment if you need to drive to work, as most do. You don’t have a choice about paying the electricity and phone bills. The most flexible part of the tight budget, the expenditure that can be squeezed, is for food. So poor families in the private rental market cut back on nutrition, sometimes just when their young children need it the most, during that critical period when brains are rapidly developing, in the first two or three years of life. Underweight children are more prevalent in low-income families without rent subsidies than in low-income families that are getting government housing benefits.

Food stamps—now in the form of a debit card—ease the hardship to an extent, but the benefits don’t last more than two or three weeks into the month, judging by what poor families say. “The food-stamp president,” in Newt Gingrich’s derisive caricature, has hardly solved the nutrition deficit, and this will have longterm consequences. Early malnutrition can leave a child with lifelong cognitive impairment, which translates into lower IQ and sometimes learning disabilities, poor school performance, and an increased tendency to drop out before graduating. In a ruthless global marketplace, an impaired workforce is not an advantage to an economy already struggling to keep up.

The 1996 welfare reforms, championed by Republicans, conceded by Democrats, and embraced by President Clinton, accomplished only one of three tasks. It moved people off welfare by setting time limits, but it failed to provide them with sufficient job training and the child care to enable their successful entry into the workforce. Many were stuck in low-wage jobs with no skills or pathways to advancement. Government officials touted the reform by counting the number of recipients who left the welfare rolls without examining where they ended up.

Medicaid and the State Children’s Health Insurance Program (SCHIP) have insured large numbers of the poor, but working families who stand just outside the eligibility requirements often remain uninsured; either their employers don’t offer insurance, or the premiums feel too high. Parents sometimes make bad bets, calculating that they can do without insurance if their children are covered by SCHIP. The new health law, which Romney denounces as “Obamacare,” would actually make some repairs to this part of the net by expanding Medicaid eligibility and subsidizing private insurance for those just above the income limits.

If Romney wants to make other repairs, once he learns about the safety net’s holes, he might draw bipartisan support for enhancing one of the most effective anti-poverty programs, the Earned Income Tax Credit. It comes as a payment by the IRS after a low-income earner files a tax return, and it can amount to more than just a refund of taxes withheld. It can effectively subsidize a wage (which means subsidizing business by allowing employers to pay less). Democrats like it because it provides direct cash assistance to needy families. Republicans like it because you don’t get it unless you work, obey the tax laws, and report earned income. Also, it doesn’t require its own government bureaucracy, since it is handled by the IRS. Eligibility for the program could be broadened, payments could be increased.

Therefore, political reporters covering the campaign could do a service by following up on the last half of Romney’s statement, after they get finished excoriating him for the first half. “I’m not concerned about the very poor, we have a safety net there; if it needs repair, I’ll fix it,” he said. Then, asked by Soledad O’Brien of CNN to explain himself, he declared, “Well, you had to finish the sentence, Soledad. I said I’m not concerned about the very poor that have a safety net, but if it has holes in it, I will repair them.”

Good journalism dictates that Romney should be asked to finish the sentence with specifics on the holes that he sees and the repairs he would make.

Listen to an interview on this subject on the Takeaway by clicking here.

Arresting the Witness Instead of the Criminals

2012-01-29T09:30:00.001-05:00

By David K. Shipler

Does this make sense? The Obama administration is prosecuting a former CIA analyst for allegedly telling reporters the names of two interrogators, but it is not prosecuting interrogators who committed torture.

Sometimes the law collides with morality. When that happens, prosecutorial discretion is supposed to reflect a certain wisdom and perspective, not a narrow agenda of expediency. But here we have the United States misreading its national security interest and misunderstanding what constitutes a threat. It was the torture itself that damaged America’s global influence, not the disclosure of a couple of names to journalists. If any repair to American moral authority is possible now, it would come by bringing to trial those who authorized and carried out the torture—a federal crime much more serious than the victimless crime of which the analyst, John Kiriakou, is accused.

Judging by the FBI’s criminal complaint, Kiriakou’s actions in giving classified information to unauthorized people did not have adverse consequences. No undercover agents were publicly identified, no intelligence sources were compromised, and the methods of torture Kiriakou may have discussed—waterboarding in particular—were already well known. He is charged with telling New York Times reporter Scott Shane in 2008 about a “magic box” that had been used to locate al-Qaeda operatives through their cell phones, but the ability to track was no revelation by then, and Shane’s Times story didn’t describe how it worked.

So, what’s going on here? Is the administration’s draconian action meant to warn leakers? Obama is going after half a dozen of them, more than his predecessors.

Is it to conceal government wrongdoing? In other ways, too, Obama hasn’t delivered on his promise of transparency.

Is it a natural institutional reflex? The CIA, a zealous guardian of classified information, called for this investigation, and the Justice Department complied.

Is it a canny political calculation? Obama seems determined to bolster his right flank against any hint of softness on terrorism or national security.

Early in his administration, he rejected appeals for the prosecution of agents and contractors who engaged in torture, at least those who worked within the permissive guidelines set by Bush’s Justice Department. Granted, getting convictions wouldn’t be a slam dunk. In their defense, interrogators would surely cite the department’s notorious legal opinion by John Yoo exempting CIA methods from the definition of torture.

What Kiriakou is accused of doing, however, is little more than what State Department and Pentagon officials do every day in conversations with reporters. Every cable sent by a U.S. Embassy to Washington is technically classified, so conveying virtually any information from the field—analysis, assessment, prediction, policy—could probably be prosecuted. The selective telling of secrets is a seasoned tradition in Washington, done to further a cause or a complaint, to inform or influence.

Still, when you name intelligence agents’ names, you violate the most protective code of the most secretive tribe in Washington, and you should expect a tough reaction. The breach was discovered in 2009 when Guantanamo guards found, in the cells of several “high-value” prisoners, photographs of interrogators who had worked for both the CIA and its private contractors. How the pictures got there, and how Kiriakou was fingered as a source—perhaps not the only one—is a bizarre tale, sketched by the FBI affidavit.

The most stunning detail in the document is this: Kiriakou used e-mail to communicate with the journalists. Huh? A former CIA agent used e-mail, the electronic equivalent of a postcard? No secret drops, midnight encounters, encoded messages? E-mail is so easy to hack that brokerage firms warn against using it for account numbers, Social Security numbers, and other ingredients of identity theft. Law enforcement can get e-mails with subpoenas, and even without probable cause the National Security Agency scoops them up wholesale through at least one splitter installed in an AT&T switching station in San Francisco. Kiriakou didn’t know that?

Several of his and the journalists’ e-mails are quoted verbatim in the criminal complaint. “Journalist A,” who is not identified but is not Scott Shane, tries to pry a name out of Kiriakou, going back and forth with bits and pieces of information. The journalist mentions a first name, and after a couple of exchanges Kiriakou confirms in an e-mail that “he was the team leader” in an operation. The journalist then sends Kiriakou a list of last names, asking him to pick the one.

“The following morning, at 9:23 am,” the FBI affidavit says, “KIRIAKOU wrote back, stating, ‘[first and last name of Covert Officer A]. It came to me last night.’ The last name of Covert Officer A had not been on the list provided by Journalist A. . . . At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer A’s full name in the subject line.”

So, the government was able to collect e-mails of its former agent, journalists, and lawyers and investigators defending Abu Zubaydah, Khalid Sheikh Mohammed, and other top al-Qaeda prisoners.

Evidently, the journalist never published or broadcast the name of the undercover agent. Another interrogator named by Kiriakou was identified in Shane’s article as Deuce Martinez, but he was not working covertly and was reported to have turned down an offer to be trained in waterboarding. He did not engage in torture, according to Shane.

What ethical lapse prompted Journalist A to give the covert agent’s name to the defense investigator? An objective reporter works on behalf of readers or viewers, not clandestinely for one side or the other in a criminal investigation. Yet the information was useful to the defense team, which wanted to subpoena interrogators to testify about their methods. If extracted by torture or other coercion, evidence provided by prisoners or witnesses could be suppressed in a trial, even one held before a military commission. Therefore, defense investigators, armed with names and sometimes addresses, staked out houses and photographed agents, then put the pictures into photo arrays to show their clients in Guantanamo.

Once prisoners picked out interrogators from those photo lineups, the defense attorneys put the names in a sealed filing to the court, without revealing the names to their clients. The leak investigation worried the lawyers that they would become targets, when they were merely giving their clients the most vigorous defense possible. This concern disappeared when the Justice Department, in charging Kiriakou, said categorically that “no laws were broken by the defense team.”

But laws were broken by the torturers, who remain unscathed by justice.

Imagining Terrorism: Bombs Not Nukes, Guns Not Germs

2012-01-21T19:45:00.001-05:00

By David K. Shipler

After 9/11, we blamed ourselves for lacking the imagination to think that hijackers might drive jetliners into buildings. To compensate for this failure, we expanded our imagination to picture terrorism by nuclear, chemical, and biological means. Now a carefully researched study concludes that weapons of mass destruction are unlikely to be used by jihadi terrorists. Their goals are more attainable with explosives and firearms, and the skill and equipment needed to mount an unconventional attack are far beyond the reach of existing terrorist groups.

The 78-page report, by the Breakthrough Institute, comes at the same time that scientists have agreed to a government request for a 60-day suspension in researching the mutation of the deadly H5N1 flu virus, lest its more contagious form “accidentally leak out of a laboratory, or be stolen by terrorists, and result in a devastating pandemic,” The New York Times reports. As depicted in the Breakthrough study, however, terrorists might not be interested in weaponizing such a virus, because it wouldn’t produce the spectacular events that “deliver compelling visual footage” for television. People dying invisibly in hospitals don’t further the aims of these groups, the study argues.

A sophisticated logic leads to that conclusion. Virtually all attacks and foiled plots since 9/11 have involved explosives and assault weapons. “No nuclear or radiological attacks have been attempted. No biological attacks have been attempted. No large-scale chemical attacks have been attempted.” Neither plans nor actual attacks have targeted food supplies, reservoirs, nuclear reactors, chemical plants, or other such installations, but rather “symbolic buildings, transportation targets, and other government assets.”

Why? One reason is that al-Qaeda and its offshoots “perform for three audiences: their potential supporters, the populations and governments whose behavior they wish to coerce, and their own membership.” In predominantly Muslim countries, they strive “to replace secular regimes . . . with fundamentalist Islamic theocracies,” requiring large-scale recruitment of “broad swaths of the Muslim population behind their goals.” This is “a war of ideas with the state,” a strategy to show the government as vulnerable and to “provoke state repression that negatively impacts the people the revolutionary group wishes to convert to its camp.”

As Osama bin Laden came to see it, repression by the American state would take the form of a U.S. occupation in the Middle East, according to the report’s analysis. “The U.S. invasion of Iraq fit Bin Laden’s updated strategy precisely. It required tens of thousands of allied ground troops who provided easy targets for guerrilla fighters, enraged Iraqi and other Muslim populations, and even led to inflammatory abuses of Muslims like those documented at Abu Ghraib prison.” Iraq was also made into a training ground for insurgents who can now apply their skills in assembling IEDs and conducting guerrilla warfare anywhere.

Why not use WMDs, then? The study argues that, first, calibrating the size of an attack is essential. “Conventional bombs and guns, targeted to harm populations the government is sworn to protect, can significantly discredit state competence and provoke delegitimizing state reactions. But weapons that significantly escalate terrorism campaigns beyond what states have become accustomed to—like the attacks on 9/11, or feared biological, chemical, or nuclear attacks—may go too far, alienating potential supporters and garnering a hardline state response that large majorities see as entirely legitimate.”

Furthermore, those who “see themselves as holy warriors on a path leading to heaven . . . seek glory in battle and . . . a martyr’s death. These operatives probably gravitate to the use of bombs and guns that give them an exhilarating sense of doing battle. Silently releasing biological and chemical agents, by comparison, may generate relatively less excitement for trigger-men.”

If all this is not comforting enough, the study goes on to detail in technical terms the practical obstacles to non-state actors acquiring the skills and equipment necessary to create and deliver radiological, biological, or chemical weapons. It’s just not that easy.

Globally, security surrounding dangerous materials has been enhanced, the report argues. Nuclear weapons can’t be manufactured by any but a handful of states, and they wouldn’t escape blame if they handed any over to terrorist groups. “Nuclear forensics” now make it possible “to trace the origin of bombs even after detonation. This effectively places a ‘return address’ on a nuclear attack.” Black-market transfers of enough highly enriched uranium or plutonium to make a bomb would be detected by passive sensors, and the material is so dangerous that ill-equipped handlers would probably be sickened or killed.

“Attempted illegal sales of nuclear material were discovered eighteen times between 1993 and 2007 as states of the former Soviet Union reacted slowly to the need to secure fissionable material,” but the amounts were minimal, totaling 17.5 pounds of uranium, whereas 50 pounds would be required for an efficient bomb.

“Dirty bombs,” which would use conventional explosives to spread radioactive material, are hardly more dangerous than the conventional bombs themselves. The materials easiest to steal—mostly used in medicine—emit forms of radiation that cannot travel through buildings or thin shields of lead, and dissipate within days. The exception is U-235, whose half-life is more than 700 million years, the report notes. But it’s hard to get.

Chemical weapons are tricky and dangerous to manufacture, dispersal is complex, and they have rarely been used. The Japanese cult Aum Shinrikyo released sarin gas in the Tokyo Metro in 1995 but killed no more than a dozen people. “Most, and the most deadly, must be dispersed at a fairly specific particle size, or ‘aerosolized,’ to reach the most vulnerable parts of the human respiratory system. Aerosolization is a difficult process that requires a technical knowledge of fluid dynamics and the coagulative properties of the material being used.” So, the study concludes, “large-scale attacks are not likely to be attempted when other means are available.”

Similarly, “biological weapons share many of the limitations of chemical weapons. They are at least as difficult to procure and prepare as the most difficult chemical weapons, and are as difficult to weaponize and disperse. Despite al-Qaeda’s multiple attempts to obtain anthrax from 1997 to 2001, they could never secure a pathogenic strain of the bacterium.” The report notes that the anthrax mailings in the U.S. were allegedly done not by a terrorist group but by an American biological weapons researcher.

Sleep well.

The Silver Lining of Super PACs

2012-01-11T16:55:00.001-05:00

By David K. Shipler

Here’s a surprise: So far, super PACS have actually enhanced the political debate. They have used big money to inform voters about the checkered pasts of Newt Gingrich in politics and Mitt Romney in business, prompting mainstream news media to focus on legitimate issues that had received scant attention.

This is the first, not-so-bad impact of the Supreme Court’s 2010 decision (Citizens United v. Federal Election Commission) granting First Amendment rights to corporations, unions, and other groups. The negative effects may be felt in the months ahead, but for now it is easy to see why the American Civil Liberties Union filed a brief supporting this outcome.
It argued that the federal law, which limited independent political spending that did not go directly to candidates, “permits the suppression of core political speech.” Five conservative justices agreed, freeing corporations—or super PACs not run by candidates—to spend at will to promote their views. The ruling left intact the restrictions on direct campaign contributions.

Although President Obama used his 2010 State of the Union address to excoriate the Supreme Court for the decision, he has already benefited from it. “I don’t think American elections should be bankrolled by America’s most powerful interests,” he declared with six justices seated before him. “They should be decided by the American people.” Here, here.

But who can deny the head start Obama has now been given, by a wealthy pro-Gingrich donor, in blasting Romney as ruthlessly eager to fire workers and shut down businesses? This line, with a Republican imprimatur, is bound to be picked up by Obama ads during the general election, and Democratic operatives are already gloating.

If you’re a First Amendment purist, you have to enjoy all this fiery argument, which respects the venerable concept that the answer to speech is more speech, not suppression. To state the obvious, however, your speech is effectively suppressed if you don’t have money. In the expensive world of modern campaigns, money buys speech and—the Court believes—is equated with speech. So, a playing field that has long been tilted is being tipped even more severely, even in a time when wealth and power are resented with special acrimony.

How much will all this freely flowing money contribute to intelligent debate? Not much unless mainstream news media pick up on the accusations and report on them with thorough responsibility. Commercials are always caricatures, whether of a car or a candidate. Political ads in particular are full of lies, almost as many as the candidates’ speeches. The more saturated the airwaves become, the harder for voters to cull untruths from facts. A good reality check is at the Web site of FactCheck.org, the Annenberg Public Policy Center’s effort to scrutinize political propaganda.

The early impact of the Super PACs appears mixed. The pro-Romney PAC, Restore Our Future, is credited with driving Gingrich down in Iowa by airing merciless ads detailing his supposed misdeeds—his “baggage,” as one commercial states.
It opens with the smiling face of Obama, and a woman’s voice: “Know what makes Barack Obama happy? Newt Gingrich’s baggage.” There is Newt, standing in front of an airport carousel labeled, “Political Baggage Claim.” Suitcases tumble out, one of them labeled “Freddie Mac,” which the narrator claims paid Gingrich $30,000 an hour (it was a mere $25,000 to $30,000 a month, says FactCheck.org).

It claims that he and Nancy Pelosi co-sponsored a bill funding a U.N. program “supporting China’s brutal ‘one child’ policy,” but FactCheck found that the measure, which didn’t pass, “specifically prohibited the use of funds for ‘involuntary sterilization or abortion,’ or ‘the coercion of any person to accept family planning services.’” The ad’s other claims are accurate, including his fine of $300,000 by the Republican House for ethics violations and his joint appearance with Nancy Pelosi to urge action on global warming. The conservative National Review is quoted as denouncing him: “His weakness for half-baked (and not especially conservative) ideas made him a poor Speaker of the House.” The announcer concludes, “Newt Gingrich: too much baggage.” In one month, Gingrich dropped from the top of the Iowa polls, at 25 percent, to fourth place in the caucus, with 13 percent.

To get even, Gingrich’s super PAC, Winning Our Future, used a $5 million contribution from a casino owner, Sheldon Adelson, to launch a devastating short film about Romney’s business exploits. Clipped into an ad, it labels Romney a corporate raider who put people out of work as his Bain Capital took over companies that laid off middle Americans, a few of whom, unidentified, tell their poignant stories of hardship and resentment. “I feel that is the man who destroyed us,” one elderly woman says on camera. “More ruthless than Wall Street,” the narrator concludes.

The film contains factual errors and distortions, according to a Bloomberg investigation, and it didn’t seem to make much of a dent in New Hampshire, where Romney ended up with 40 percent of the vote. But it stimulated extensive press coverage of his business ventures.

The New York Times ran a lead editorial calling him “a buyer of flailing companies who squeezed out the inefficiencies (often known as employees) and then sold or merged them for a hefty profit.” National Public Radio did a lengthy piece, and television networks weighed in. Short bits of the film may have more impact in South Carolina, which has suffered more job loss than Iowa and New Hampshire.

It would be pleasing to think that the super PACs’ portrayal of real issues, even crudely as in political ads, will contribute to intelligent debate over serious problems. I suppose that can happen only if we can talk while gritting our teeth.

Obama Toys With the Constitution

2012-01-06T16:10:00.001-05:00

By David K. Shipler

President Obama has adopted one of George W. Bush’s most troubling tactics, roundly denounced by liberals when a conservative Republican used it, but now generally excused by liberals when employed by a Democrat in the White House. It is the “signing statement,” a litany of reservations and reinterpretations of a bill, issued by a president as he signs it into law.

Obama did this on the last day of 2011 to soften the immediate effect of the military detention powers he had just been awarded by Congress. He said he would “not authorize the indefinite military detention without trial of American citizens,” as the new law allows—but he signed a bill empowering any president to do so anyway. He rejected the statute’s requirement that foreign suspects be held by the military, saying he would use his option under the law to waive the mandate broadly, both for individuals and for “appropriate categories of cases.” Nevertheless, he signed a bill that would impose no such restraint on any president.

Those of us who value the ingenious mechanism of the Constitution have to acknowledge mixed feelings about Obama’s signing statement. On the one hand, it recognizes that indefinite detention without due process of Americans (and, I would add, non-Americans) “would break with our most important traditions and values as a Nation.” Most Republicans and many Democrats in Congress seem to need reminding that our civilian court system is a crown jewel of our constitutional democracy—imperfect, yes, but probably the most accurate method of getting to the truth of a person’s guilt or innocence. It does not deserve the derision inherent in this faddish preference for an untested system of military prisons and tribunals.

On the other hand, Obama did damage that may outlast him, even if he gets a second term. He granted the military system legitimacy and embraced the newfound presidential power to evade the judicial branch. He said he would choose between military and civilian venues for each terrorist prosecution, for the sake of a “flexible approach,” and “to remain relentlessly practical.” The words “practical” and “flexible” do not appear in the Constitution, and for good reason. There is much about the protections of individual rights that is neither practical nor flexible, but rather demanding, cumbersome, and inefficient. The framers thought that the price of inconvenience was worth paying for liberty.

In addition, the presidential habit of deciding which of a new law’s provisions he will observe can only promote a measure of lawlessness. One section of the 2012 National Defense Authorization Act, for example, prohibits the transfer of any prisoner from Guantanamo to the U.S., or to any other country where a previous transferee has returned to terrorism. As wrong-headed as these provisions are, Obama cannot just wish them out of the statute, as he does by stating that they “violate constitutional separation of powers principles” and that “my Administration will interpret them to avoid the constitutional conflict.”

He thereby opens the door to the large question of which branch of government interprets the Constitution. This is essentially the same question raised by Newt Gingrich when he argues that a president can ignore supposedly unconstitutional rulings by the courts.

Gingrich cites Abraham Lincoln’s opposition to the Dred Scott decision, and while the candidate-historian gets some details wrong, according to FactCheck.org, he accurately reflects Lincoln’s discomfort with the concept of Supreme Court precedent extending beyond the specific case at hand. Lincoln declared that while the Court’s opinions deserve “very high respect and consideration” when applied to like cases that follow, “at the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

This was not a novel argument, although it came decades after the Supreme Court, in Marbury v. Madison, had invested the courts with the power to strike down laws judged to be in violation of the Constitution. This authority of judicial review is not explicitly present in the Constitution, is far from universal in open societies, and was slow to be accepted in the United States. Bryon Andreasen, research historian at the Lincoln President Library, wrote this to FactCheck:

“Lincoln leaves open the door to the view that each branch of government has a similar power and duty to decide constitutionality—a view that was more prevalent in the 18th & 19th centuries than it is today.”

Indeed, the view was firmly held by Thomas Jefferson, who wrote that “each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves.” It’s not hard to imagine the consequences of such a dictum. Let us hope that the Supreme Court will eventually strike down as unconstitutional the military detention provisions just signed into law.

Jefferson was not at the Constitutional Convention. If he had been, he might have heard James Madison wisely observe, “All men having power ought to be distrusted to a certain degree.” The words should be carved into the Oval Office, chiseled into the Capitol Rotunda, and hung prominently before the Justices of the Supreme Court.

Counterterrorism: Legalizing Illegality

2011-12-22T11:11:00.001-05:00

By David K. Shipler

You may have noticed a pattern in counterterrorism since 9/11. First, the executive branch violates the law, provoking an uproar of outrage, and then Congress changes the law to permit the violations. This has happened several times in the last decade, most recently in the National Defense Authorization Act’s mandate that suspected terrorists be imprisoned by the military, possibly indefinitely. President Bush started doing just that without clear legal authority, locking up three U.S. citizens in military jails until the courts intervened. Instead of acting to prevent a recurrence, Congress has now codified this extraordinary power.

The peculiar dynamic here is very different from the one seen in the 1970s, after the FBI and other federal agencies illegally spied on civil rights and antiwar groups.
Then, a carefully documented investigation by a bipartisan congressional committee, chaired by Sen. Frank Church of Idaho, prompted Congress to pass a series of laws restricting, not legalizing, the executive branch’s behavior.

The Right to Financial Privacy Act of 1978, for example, erected obstacles to government’s acquisition of personal banking, investing, travel, and other records. The Electronic Communications Privacy Act of 1986 forced law enforcement to get proper warrants and subpoenas before acquiring information on a person’s contacts by phone or, as technology evolved, by e-mail and Web browsing. The Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted as an unprecedented attempt to regulate intelligence gathering inside the U.S. and, through a system of clandestine warrants signed secretly by federal judges, to make sure the government did not repeat the abuses of the past.

Since 9/11, however, the executive has not been seriously checked by the legislature. Quite the opposite. First, Congress shot holes through those privacy statutes, most notably FISA, through amendments contained in the 2001 Patriot Act. Then, even after FISA was weakened, the Bush administration surreptitiously defied the law by assigning the National Security Agency to eavesdrop extensively without bothering with the required warrants. Rather than tightening up, Congress in 2008 (with a yes vote by Senator Barack Obama) diluted the law’s warrant requirements. The changes “gave the government even broader authority to intercept international communications” than Bush’s program, according to a joint report by the inspectors general of the CIA, the NSA, the Justice Department, the Defense Department, and the Director of National Intelligence.

When it comes to detention policies, Congress has also been supine before a zealous executive branch—as in Bush’s unilateral attempt to strip Guantanamo prisoners of their access to the courts through habeas corpus, the venerated right by which a prisoner may summon his jailer to court to justify the incarceration. Bush declared that the prisoners could be held indefinitely without trials or attorneys.

The Supreme Court then ruled in 2004 that the Guantanamo detainees retained their habeas right. The following year, Congress denied them the right, in the Detainee Treatment Act, but the Court ruled in 2006 that the statute had failed to find that the country faced “cases of Rebellion or Invasion,” the Constitution’s test for suspending habeas corpus. (Since then, individual Guantanamo prisoners have experienced mixed results in their habeas petitions in the lower courts, where conservative judges have required the jailers to show minimal cause to hold them.)

Bush also ignored Congress in creating military tribunals to process the prisoners in lieu of trial. Much of the civilian and some of the military legal establishment cried foul, and the Supreme Court noted disapprovingly that the tribunals were “not expressly authorized by any congressional act.” So Congress obliged by passing the Military Commissions Act of 2006, which granted the president some of the most extensive powers in American history. Foreigners could be seized and designated enemy combatants in Afghanistan or Alabama, Iraq or Indiana. Searches in violation of the Fourth Amendment could be performed inside the U.S., with the resulting evidence admissible in a military trial. Unconfirmed hearsay could be introduced in violation of the Sixth Amendment’s right to confront accusers. Statements from coerced interrogations would be admissible in violation of the Fifth Amendment’s right against self-incrimination.

The law was amended in 2009 to restore the key rights in the Fourth, Fifth, and Sixth Amendments, but it remains a formidable tool, now expanded by the 2012 National Defense Authorization Act.

Congress has gone far beyond what the Obama administration wanted, and has authorized deep penetration into the rights of people who happen to come onto the government’s radar as suspected terrorists. The executive branch is denied the option of using civilian courts to conduct terrorism trials of non-Americans, unless the president issues a waiver in individual cases. The military is required to incarcerate those who have “substantially supported al-Qaeda, the Taliban, or associated forces,” either inside or outside the U.S., and could try them in military commissions.

That unusual requirement for military detention does not apply to U.S. citizens or legal permanent residents; in their cases, being thrown in the brig is optional; the president may hold them either in military or civilian custody. The Military Commissions Act does not permit military trials of civilian U.S. citizens or legal permanent residents, but under the new law they may be held indefinitely, “without trial until the end of the hostilities” begun with the 9/11 attacks. This is a draconian codification of the power of indefinite detention asserted by both Bush and Obama. How the Supreme Court will ultimately judge the statute’s constitutionality is a question.

Meanwhile, however, the same Congress that cannot untangle itself to extend unemployment benefits or payroll tax cuts finds it easy to move with remarkable efficiency to undermine constitutional rights. With Obama agreeing to sign this law, George W. Bush and Dick Cheney must be having a merry Christmas. You can imagine their satisfied smirks.

Big Father: The Government as Parent

2011-12-12T09:00:00.002-05:00

By David K. Shipler

When President Obama endorsed the decision to overrule good science and put Plan B contraceptives beyond the reach of girls without doctors’ prescriptions, he cited his role “as the father of two daughters.” It was a revealing remark, because this was not the first time that government had played an immoderate part in family life—not quite Orwell’s Big Brother, but something of a Big Father, taking over a task that rightly belongs to parents to choose how to raise and guide and converse with their child.

It is conservatives, the supposed champions of limited government, who most often want government to act like Big Father. In Tecumseh, Oklahoma, parents got the public high school to do random drug testing after a mother discovered her son and friends using drugs in her house. She and other parents couldn’t cope with their own children. In Stockton, Missouri, a father enlisted a conservative pastor to get the public high school to remove a popular and powerful book, about an American Indian facing racism and poverty, because of a brief passage extolling masturbation. Some parents, unable to talk with their kids about sex, are relieved to shift the burden to the school, or to see the topic erased altogether from available readings.

Unlike most government institutions, schools do serve in loco parentis, so certain parental functions will invariably be performed by principals, teachers, coaches, and guidance counselors. What’s significant about the drug testing and book restrictions, though, is the degree to which some families have forfeited their responsibilities and have mobilized government to impose their priorities on other parents.

This confuses governing and parenting. It’s fine to bar kids from buying cigarettes and alcohol, but many will still smoke and drink unless they get good parenting. Legal restrictions are no substitute for honest discussions at home, conversations all the more urgent in a world saturated with the temptations of violence, promiscuity, and drugs. With all this swirling around children, raising them well is hard, and caring parents are often at a loss. But it’s a good bet that parents who maintain open lines of communication and can trust their children to be truthful and responsible will see better results than those who rely on government to search, censor, and over regulate. Impeding children’s access to a safe means of preventing pregnancy after sex, for example, will prevent neither pregnancy nor sex.

Drug testing and book banning also let parents off the hook. The high school in Tecumseh, Oklahoma, began taking random urine samples in response to desperate parents. Lindsay Earls, a student who challenged the testing as a violation of the Fourth Amendment, summed up their message to the school board this way: “Our kids are out of control. You fix this for us.”

So school authorities obliged by deciding inexplicably that all students in extracurricular activities involving travel be subjected to suspicionless testing. They would be called out of class periodically to give urine samples, a humiliation that sparked inaccurate assumptions that they were selected because they were using. Earls did not do drugs, but when her case went to the Supreme Court, the conservative justices mustered a five-to-four majority upholding the school. The liberals on the Court, who are stereotyped as favoring big government, opposed allowing government to get so big as to invade students’ privacy without suspicion.

And this is the pattern. The book that was removed from readings in Stockton, Missouri, Sherman Alexie’s The Absolutely True Diary of a Part-Time Indian, is a moving account of a bright, impoverished boy leaving the reservation to enroll in an all-white school, where he is initially vilified, ultimately forms friendships, copes with death in his family, and seems eventually to be finding his way in the larger world. His fleeting, half-page praise of masturbation (“EVERYBODY does it. And EVERYBODY likes it.”) offended a few fundamentalist believers, enough for the school board to deny all students the right to read and discuss it in class.

With that edict—and others like it elsewhere involving books containing profanity, sexual episodes, or sympathetic characters who are gay—local government disempowers other parents who might want to make their own decisions. Many schools allow parents and students to replace controversial readings with alternatives. But where the book is simply removed, the choice is lost.

The Plan B decision was based on similar efforts to placate a conservative minority. The White House is reported to have been trying since 2009 to get the Food and Drug Administration to deny over-the-counter sale to minors, although the hormonal drug in question merely delays ovulation and has been judged medically safe for all ages. Unlike the morning-after pill RU-486, it does not induce abortion, but if taken soon after sex is designed to prevent fertilization of the egg in the first place, as are spermicide and IUDs. Most kids don’t have the resources to get quickly to a doctor for a prescription.

Obama is more conservative than either his supporters or detractors admit. Overriding the FDA not only subjects science to politics, it turns rightist morality into the force of law and takes a liberty from girls under 17—at least those who cannot find an older friend, sibling, or parent willing to make the purchase illicitly. Big Father is watching.

Poverty: How Much Is a Family Worth?

2011-12-05T14:35:00.001-05:00

By David K. Shipler

We’re being peppered with a lot of numbers that tell us less than we need to know about financial hardship. We have the 99 percent and the one percent. We have the 8.6-percent unemployment rate. We have the average payroll tax cut of $1,000 this year, which next year will become either $1,500 or $0, depending on how well Congress dysfunctions before Christmas. Either 46.6 million or 49 million people are poor, depending on whether you want to reduce “poverty” by using the official formula based on families’ 1950s spending patterns, or would rather reconcile yourself to living in the 21st century, whose facts of life produce the higher calculation by the Census Bureau.

It is hard to get to the human story of poverty, and none of these numbers takes us there. A more revealing statistic helps, but it doesn’t get the attention it deserves: a household’s net worth—assets minus liabilities.

Income measures the present, net worth includes the past. Income is a still photograph, a snapshot of the moment. Net worth provides a moving picture of a family’s accumulated gains and losses. It carries the past into the present, measuring the resources available to cushion a fall, and assesses the weight of the past on the future. Unfortunately, net worth is given no role in computing the poverty rate.

The Federal Reserve surveys families and makes the calculation. On one side of the ledger are money in the bank, stocks, bonds, the value of a home, vehicles, jewelry, and other tangible possessions. On the other side are credit card balances, car loans, mortgages, unpaid bills, and other debt. In the United States, the disparities in net worth from top to bottom are striking.

A lot of wealth evaporated in the Great Recession beginning in 2008. Real estate values plummeted, stocks took a dive. People at all socio-economic levels lost net worth between 2007 and 2009. But those at the bottom rungs, who had the least to spare, took the biggest hit.

In 2007 before the crash, the median household net worth stood at just $1,700 for the bottom 25 percent, while the richest 10 percent had $2,039,000. Those wealthiest families dropped by 2009 to a median of $1,589,000. Still not too bad. But those in the lowest 25 percent slipped into negative territory, leaving them with a median household net worth of minus $4,900, meaning that they owed more than they owned.

Racial disparities were also acute. For white households, the 2009 median net worth stood at $113,149. For Hispanics it was $6,325, and for blacks, $5,677. The 20-1 ratio of white to black wealth doubled between 2004 and 2009, according to an analysis by the Pew Research Center.

With such tiny reserves, people at the bottom have little protection against reversals. For at least one quarter of America’s households, what may seem like a minor inconvenience to the rest of the country can trigger a catastrophic chain reaction. A car repair, a rent hike, or an out-of-pocket medical expense either deepens a family’s debt or squeezes other parts of the budget. You have to keep your car running if you need it to get to work. You have to pay the rent, electricity, heat, and phone bills. The part of the budget that can be squeezed is for food, so that’s what many families cut, producing a dangerous domino effect.

Because market rents can soak up 50 to 70 percent of a low-income family’s budget, a high correlation has been found between a lack of government housing subsidies and underweight children. Malnutrition in the early years, during the most crucial period of brain development, produces lifelong cognitive deficiencies, which do not disappear even if nutrition improves later on. School performance may suffer, dropout rates may rise, and impaired children grow up and enter the working world without the skills they need to keep them—and their country—competitive in a ruthless global marketplace. This pattern is well understood, yet it spurs no action that would be in the national interest.

Similarly, a medical problem can instantly decimate a family’s finances, as in the case of a young father in New Hampshire, unemployed and without health insurance, who couldn’t afford dental checkups. When he got toothaches, he went to emergency rooms. Hospitals are required by law to provide emergency treatment, even if you’re not insured, but they can also bill you. So they billed him repeatedly, and once he had run up $10,000 in debt, his credit rating plummeted and followed him like a curse. Even after he got a decent-paying job as a roofer, taking him above the poverty line, no company would install phone service in his house.

The weight of his debt was more than financial. It burdened his choices, damaged his sense of possibility, and taught him to feel helpless, exposing him to the sense of powerless that is a common characteristic of poverty. As long as money is equated with success, as it is in American culture, its lack suggests failure, and failure can take many forms.

If you have failed repeatedly—in school, in relationships, in job after job—you do not easily imagine success, and if imagination is impaired, so are confidence and therefore performance. When low-wage workers don’t show up on the job, their annoyed bosses might consider this insight from Ann Brash, who fell into poverty from the middle class after a divorce: “People who don’t call when they can’t come to work probably don’t think they’re important enough to matter.”

People who stop believing in possibility tend to slide toward defeat. The available numbers do not capture the psychological hardship, the anxiety, and the alienation that now flow through the American landscape. Those will not be described by statistics, except perhaps by the tabulations of votes next November.

In Search of Thanksgiving

2011-11-23T09:41:00.002-05:00

By David K. Shipler

The Monday before Thanksgiving, the head of Georgetown Day School in Washington, D.C., urged an assembly of high school students to mark the holiday by giving thanks, by reflecting on the people in their lives who had contributed to their well-being. The act of expressing gratitude in itself, he said, had been shown to improve well-being.

Then he introduced me as the morning’s speaker, and I flipped the question around. What did they want to be thankful for? What would they like our generation to leave them in this world that would deserve their gratitude?

Hundreds of teenagers stared at me, thinking in silence. The hesitation (or the contemplation) stretched on until an adult in the back, presumably a teacher, raised his hand. “Peace and compromise,” he said on the very day that political leaders had again failed to reach compromise as the congressional supercommittee gave up on lowering the debt.

Hands began to go up. “The end of oil,” a student suggested in a guileless wish. Sustainable life, another said, leaving us to imagine a broad universe reaching from ecology to equality. Nobody should have to fear losing a job, one added. Representatives should represent the people, another declared.

These good, smart kids seemed to be standing right where we should all be: at the boundary between the country’s ideals and its practices. It is a difficult place these days, when we know the things that have to be done but can’t gather ourselves to do them. What is there to be thankful for? Our ephemeral military victories? Our prospering 1 percent? Our robust hate speech? Our vigorous surveillance society? Our sensible, selfless political leaders?

Thanksgiving has the beauty of universality. It excludes no one. It can be a religious holiday or not, as you choose. It summons no patriotic displays that can be cheapened by jingoism. It requires no gift-giving, fosters no egregious materialism, and produces no self-indulgence except for food and family—which are worthy means of celebration.

Yet there is something sad about having to search to give thanks. The students at Georgetown Day were not smiling—not even a boy who said hopefully that he’d be grateful for an NBA season. There is a loss when you cannot rejoice in the world and instead have to retreat onto the safer, private ground of your own small circle, being thankful for your family and friends and not for the state of what lies beyond. Intimate warmth and love become a sanctuary as well as a blessing.

High school is a wonderful age, at the cusp of consciousness about the larger world. Ideas are new. They have a fresh clarity, unspoiled by cynicism. Curiosity is still eager, unburdened by the weariness of disappointment.

So I told them that they had more power than they thought: Think back 60 years, when a 16-year-old named Barbara Johns took the platform at an assembly in her all-black, segregated school in Farmville, Virginia. She ordered the teachers out and led a discussion with students about the wretched conditions: tarpaper shacks to house the spillover from overcrowded classrooms, the history teacher who doubled as a bus driver and collected wood and started fires in the morning, the coats everybody had to wear inside in winter.

The Farmville students called a strike, walked out, appealed to NAACP lawyers, and filed a lawsuit that, combined with four others, led to the landmark decision in Brown v. Board of Education.

The Georgetown Day students are not about to call a strike and file a suit. They don’t have to. They are warm and privileged. But they may also be restless about what we are leaving them, and maybe that will translate into action. Perhaps the question still echoes, perhaps they will continue to think about what they would like to be thankful for, and someday make it happen.

Tortured Republicans

2011-11-14T22:15:00.002-05:00

By David K. Shipler

A flicker of discomfort crossed Herman Cain’s face in last Saturday’s debate as he was asked about torture. He appeared to be considering the question. For a moment that lasted only as long as his first two sentences, he seemed about to take the high road: “I do not agree with torture, period.” Then he came up with an idea suitable for a banana republic: Leave it to “our military leaders to determine what is torture and what is not torture.” Yet in a final twist, he took a position different from military leaders’ by endorsing waterboarding, which (he may not have known) the Army Field Manual explicitly forbids. He said it wasn't torture. Michele Bachmann followed suit. Rick Santorum had already announced last May that John McCain, who was tortured for five years as a P.O.W. in North Vietnam, doesn’t understand the issue.

Behind this spectacle is an unpleasant truth: Republicans who can’t kick the addiction to torture have been enabled by President Obama and the Democratic leadership in Congress, who could have created an investigative commission to nail down the facts, expose them to public scrutiny, and puncture the myth that reliable information is obtained by abusing prisoners.
Just as the Church committee in the 1970s documented federal agencies’ spying and dirty tricks against Americans in the civil rights and antiwar movements, a commission on torture—and also on secret surveillance—could inform citizens and perhaps generate corrective measures. The Church committee’s exhaustive report provoked a flurry of privacy laws, which worked pretty well until they were amended and weakened by the Patriot Act.

Since Obama entered office, however, there has been more lecturing than legislating on such matters. He said all the noble things after the Saturday debate, recalling as usual the country’s finer values—“It’s contrary to our ideals, that’s not who we are, that’s not how we operate.” It feels good to have a president who sees the moral issue, but feeling good is not enough. Unless the morality is codified in law, it can disappear as quickly as Obama will vanish whenever he leaves office.

He stopped torture not through legislation when his party controlled both the House and the Senate, but with an executive order requiring all agencies to abide by the Army Field Manual, which was revised in 2006 to bar waterboarding explicitly. The order can be rescinded with a signature, which most Republican candidates are eager to apply. The Democratic Congress could not even pass a bill that would have amended two laws by outlawing waterboarding as both torture and “cruel, inhuman, or degrading treatment.”

So Republicans remain free to pretend that it is not torture but only “enhanced interrogation” to strap someone to a gurney, tilt him head down, cover his mouth and nose with a cloth, and pour water into it to create the sensation of drowning. Without a change in the law, they could arguably resume it as soon as they return to power. In the debate, only two of the lowest scorers in the polls—Ron Paul and Jon Huntsman—denounced the practice. Paul called it un-American.

Oddly, the candidates who support the method display no shame about their historical fellow travelers. Simulated drowning was a tool of the Spanish Inquisition. It was considered evidence of war crimes during trials of Japanese after World War II. It was used by the Chinese against American prisoners, by the Pol Pot regime in Cambodia, and by white Americans who imprisoned black laborers in Southern mines and factories during the early twentieth century. Two decades before the Bush administration employed the technique, the Justice Department won convictions of a sheriff and three deputies in Texas for waterboarding prisoners.

As performed by the CIA, waterboarding was surrounded by rules that created a surreal aura of clinical humaneness. To avoid lowering the level of sodium in a prisoner’s blood if he swallowed a lot of water, for example, the torture (sorry, the “enhanced interrogation”) had to be done with a saline solution. A two-hour session would be broken into twenty-minute periods, during which water could be poured onto the cloth for 20 to 40 seconds, the prisoner then allowed three or four breaths, then another 20 to 40 seconds, and so on. Two such two-hour sessions could be conducted within 24 hours, for five such days per month. A physician would be standing by just in case—a violation of medical ethics.

We know these details because the Obama administration released the relevant documents, one of which, the discredited “torture memo” by John Yoo, would effectively be revived by the Republican fans of waterboarding. As a Justice Department lawyer under Bush, Yoo played with semantics. The statute defines torture as “severe physical suffering,” which Yoo concluded did not apply since waterboarding lasted too short a time and was not sufficiently intense. It was just “distress,” not “suffering” when waterboarding induced “panic in the form of an acute instinctual fear arising from the physiological sensation of drowning.” He went on: “Physical distress may amount to ‘severe physical suffering’ only if it is severe both in intensity and duration.”

This memo was widely ridiculed and eventually withdrawn by the Bush administration, but its sophistry survives in the presidential campaign, the latest reminder that when language is corrupted, so is perception and then behavior. The country needs to cleanse its vocabulary, which an eminent commission could help accomplish by laying the truth out on the table.

The Blurry Poverty Line

2011-11-08T15:16:00.002-05:00

By David K. Shipler

Now that the Census Bureau has offered a more realistic way of calculating poverty, the outdated method should be discarded instead of retained as the “Official Poverty Measure” used to determine eligibility for government benefits. It was designed in the 1960s, when the average family spent about one-third of its budget on food, a proportion that has fallen to one-seventh as housing and other costs have soared. So it makes no sense to take the price tag of a minimum food basket and multiply it by three. But that will continue to happen unless Congress and the administration act—a hard act to perform with federal and state governments in fiscal straits.

The revised method uses food, shelter, utilities, and clothing costs as the basis for determining the poverty line. But what is most useful about the approach is not its tally of the poor—49 million (16 percent) under the new calculation compared with 46.6. million (15.2 percent) under the old. It is, instead, the ability to drill down into the complex of government programs to assess how much they help, and into families’ everyday expenses to see how much they hurt. This is accomplished by examining both sides of the household ledger: income and spending.

While the “official” method treats the country as if it were homogeneous, the new calculation—called the Supplemental Poverty Measure—includes regional adjustments to such expenses as housing, whose costs vary markedly from place to place. In-kind government benefits (food stamps, etc.) that are not considered in the official calculation of household income are part of the “supplemental” method. In this way, the Census Bureau has built on two decades of study by experts to develop a sophisticated tool for policymakers, if they will use it.

We learn, for example, that without the Earned Income Tax Credit, the overall poverty rate would jump to 18 from 16 percent, and for children to 22.4 from 18.2 percent. Without housing subsidies, 0.9 percent more of the general population, and 1.3 percent more children, would reside below the poverty line. Eliminating food stamps would raise the overall poverty rate to 17.7 percent. But a much smaller difference—just 0.1 percent—is made by WIC, the nutrition program for women, infants, and children.

Expenditures such as transportation and child care for working parents, and out-of-pocket medical payments, are omitted from the official measure but included in the supplemental, with illuminating results. It turns out that the costs associated with having a job raise the poverty rate by 1.5 percent, and medical expenses raise it by 3.3 percent.

These and other findings point to the leverage over poverty that could be exercised by changes to benefits and expenses. The number of poor would be reduced significantly by expanding government medical insurance, such as Medicaid and the State Child Health Insurance Program. Poverty would be eased by broader access to subsidized child care and by sufficient mass transit to reduce the necessity of owning a car to get to work. More generous housing subsidies would have a major impact, especially since housing is typically the largest item in the family budget, soaking up cash that could otherwise be spent on food. Child malnutrition is higher among low-income families who do not have housing subsidies.

The new data also confirm what specialists have long believed: that the Earned Income Tax Credit has a direct, efficient effect on poverty, since it puts cash straight into the hands of low-wage workers. It also has the rarest of attributes: bipartisan appeal in Washington.

Only someone who has a job and files a tax return is eligible, which is why Republicans have traditionally supported it. The payment from the IRS is more than just a tax refund. It can exceed taxes withheld from a paycheck, and can add up to several thousand dollars if a person has a low enough income and at least two children. “When I get my taxes” has become a familiar line in poor neighborhoods. Obama’s stimulus package raised the payments, but only temporarily, leaving millions likely to fall again below the poverty line as the funding wanes.

The “poverty line” is artificial, whether it is the “official” $22,113 in annual income for a family of four or the new $24,343 calculated by the “supplemental” method. The line is imaginary. It defines no true boundary or threshold. It tells something about the material conditions of American families, but it does not mark a dramatic difference between misery and well-being.

Impoverished families struggling to move up and over the poverty line find that it’s more complicated than showing a passport and crossing a frontier. It’s more like walking through a minefield, and even those who get to the other side discover how little their living standards have changed.

Fulltime work is still hard to come by, wages are still inadequate, housing is still expensive, and the unquantifiable ingredients of powerlessness and stress and uncertainty remain. In territory that stretches some distance above the poverty line, there is still not enough to cushion a family from a reversal or a mistake. There is little to stop the chain reaction of problems that can cascade from a minor car breakdown to a day missed from work, to a lost job, to rent unpaid, to eviction, and on and on.

These are not terrible fantasies. They are real experiences. It will take compassionate perception for both voters and officials to read the human stories behind the new numbers and act accordingly.

Palestine: The Theoretical State

2011-11-02T21:24:00.002-04:00

By David K. Shipler

Finally the Palestinians have gained complete, uncontested control over a piece of territory: several comfortable chairs in the hall at Unesco’s Paris headquarters. If their quest for national recognition continues along this path, the Palestinian state will expand to similar furniture in various exquisite meeting rooms in Geneva and New York, rendering Palestine the first country to exist in committee but not in reality.

There is something terribly sad about this spectacle.
Virtually the entire world, Israel included, has come to endorse the justice of Palestinian statehood. This marks a revolution from thirty years ago, when the United States remained opposed, and the only Israeli Jews to support Palestinian sovereignty were on the extreme left, in the Communist Party. At the time, even Israel’s Peace Now movement wouldn’t call for Palestinian statehood for fear of losing mainstream support for its campaign to end Jewish settlements in the West Bank and Gaza.

Now, 69 percent of Israelis recently polled by Hebrew University say that Israel should accept a U.N. decision to recognize a Palestinian state—a remarkably high percentage after all the rockets from Hamas-controlled Gaza, all the suicide bombers of the second intifada, and all the Palestinian propaganda claiming Haifa and Tiberius and other Israeli cities as Palestinian. There has been a sea change, which began with the Oslo accords of 1993. Yet the rightwing Israeli government has enlisted the U.S in attempts to scuttle or delay U.N. recognition, which Washington can veto in the Security Council but cannot stop in the General Assembly, which could grant full observer status.

The disputed question is not whether, but how, to get to a Palestinian state. Should it be by negotiation or by declaration? The first route, preferred by Washington, travels over hard ground and leads to real statehood; the second, currently pursued by frustrated Palestinians, soars through intoxicating air and produces an exciting symbol. It was the symbolic victory that propelled the bulk of Unesco’s delegates to their feet when their lopsided vote was announced this week to admit “Palestine” to the U.N. agency: 107 to 14 with 52 abstentions. They cheered wildly, as if Palestine had just achieved sovereignty. These are supposed to be sober-minded diplomats. One wonders what they will do if independent statehood actually comes about.

Meanwhile, the theoretical country of Palestine seems destined to exist in a parallel universe, gaining admission to one U.N. agency after another, and finally to the General Assembly, without having a real state on the ground. It has no fixed geographical definition on the West Bank, just scattered blobs on a map showing fragmented jurisdiction over concentrations of Palestinians. Its Gaza component, run by Hamas, stands in a warlike posture against its West Bank pseudo-government, the Fatah-led Palestinian Authority. The borders are controlled by its neighbors—Israel, Egypt, and Jordan—and its territory on the West Bank is perpetually vulnerable to expropriation for Israeli settlements. The declaration of symbolic statehood would provide nothing to ordinary Palestinians except a fleeting sense of dignity that will quickly descend again into daily humiliation at checkpoints and barricades.

Of course symbols and myths have always been woven into the Israeli-Palestinian conflict. Each side’s historical narrative has its share of fantasy and distortion, and the terrain of grievance and yearning includes the landmarks of religion. No true resolution is possible without addressing the symbols and myths, either by acknowledging them or by putting them to rest with a mutual stance of compassion and accommodation. What then is the role of symbolic, mythological statehood?

As long as the conflict remains a contest for international opinion, stature on the world stage counts. So Palestinians might score points in international law by arguing that Israel now occupies and settles another country, not just a disputed territory. Palestinians would gain a platform in international bodies and a legitimate claim as custodians of world heritage sites as designated by Unesco, for example. In the realm of diplomacy, these might be considered “facts on the ground,” to use former Prime Minister Ariel Sharon’s term of affection for the Jewish settlements he promoted on Palestinian lands.

So Israel is naturally uncomfortable with the U.N. gambit. Yet a question arises about where the Israeli interest might lie in all this. Israel’s own statehood was born of a United Nations vote, after all, not through negotiations with its neighbors. Further, the U.N. imprimatur was not enough to convert the concept of independence into its culmination in fact, as it will not be sufficient for the Palestinians. In Israel’s case, it took a war with the surrounding Arabs. For the Palestinians, it will take a successful negotiation with the Israelis if the symbol is to be followed by the reality.

In the traditional calculation, peace agreements reflect power on the ground, with the weaker side acquiescing. The Palestine Liberation Organization, weakened after the 1982 Lebanon War and the 1991 Gulf War, regained its footing by recognizing and negotiating with Israel. But it is fair to ask whether the equation might now be reversed, whether—in the wildest, most hopefully unrealistic scenario—the stature of symbolic statehood could give Palestinian leaders a sense of authority to compromise on the toughest issues.

Both Yasser Arafat and Mahmoud Abbas were offered good deals if they abandoned maximalist positions, especially on control of Jerusalem with its holy sites. But they could not do it without cultivating broad consensus, especially in the larger Arab world.

In 2000, Arafat walked away from Israeli Prime Minister Ehud Barak’s offer to share Jerusalem and withdraw from 95 percent of the West Bank. To get the land and the state, Arafat would have had to declare an “end of conflict” with Israel, a dramatic step. He demurred. Barak had given no advance notice of his Jerusalem proposal, so Washington had had no opportunity to lobby for support from Arab countries. Arafat, standing alone, was unwilling to take what he saw as the lethal risk of compromise.

In 2008, Israel’s Prime Minister Ehud Olmert tried and failed to get Palestinian President Mahmoud Abbas to sign, on the spot, an intricate plan to give the Palestinians more than 90 percent of the West Bank, all of Gaza, and some Israeli territory to compensate for West Bank settlements that Israel would annex. Jerusalem’s Old City would be governed internationally, and a small number of Palestinian refugees from the 1948 war would be allowed to return to Israel. Abbas pleaded for time to study the maps, and a meeting of the two sides’ advisers was scheduled for the following day. But the Palestinians cancelled the session, Olmert writes in his memoirs. His successor, Binyamin Netanyahu, took the proposal off the table.

Both Barak and Olmert were politically weak at the time, and Arafat and Abbas had every right to doubt their ability to see their proposals through. It is worth considering whether a strong Israeli prime minister and a strong Palestinian president—the head of a theoretical state—could do better.

Can Israel Survive?

2011-11-01T13:57:00.004-04:00

BOOK REVIEW
By David K. Shipler
(Published in the Nov./Dec. 2011 issue of Moment)

The Anatomy of Israel’s Survival
Hirsh Goodman
PublicAffairs
2011, $26.99, pp. 288

“Can Israel survive? The question used to infuriate me,” Hirsh Goodman begins in The Anatomy of Israel’s Survival. “Does someone wake up in Britain, or America, or even Burundi, and ask themselves whether their country can survive?”

No, not yet. But nobody asked that question about the Soviet Union either, except for the dissident Andrei Amalrik, in his aptly titled Will the Soviet Union Survive Until 1984? It did, but only seven years past the date he chose as a sardonic nod to Orwell. Add Yugoslavia, Czechoslovakia and now Sudan, and throw in the non-state actors—al Qaeda, Hamas, Hezbollah, which have the leverage to ignite war and shape international politics—and the world order of nation states seems stricken by impermanence. It’s a wonder that the Palestinians want the United Nations to grant them a status so precarious.

Into this global uncertainty marches Goodman, a dedicated Israeli patriot and respected journalist-scholar, focusing on the threats of Israelis’ own making as well as those from outside. In The Anatomy of Israel’s Survival, he casts aside his old assumptions about the durability of the Jewish state. “It has taken me years to understand there is much merit to the question,” he writes. “Modern Israel faces challenges from Arab demography; the explosion of the ultraorthodox community; enemies to the north, east, and south, and as far away as Iran; and terrorism from closer to home.” Its democracy is “both entrenched and fragile,” its independent legal system under constant attack by “the right wing and Orthodox.” It lacks significant natural resources “other than brainpower,” which is easily lured away.

That is his quick catalogue. Many of its contents will be familiar to informed readers, but pulling them together into one volume creates synergy among the issues until the whole exceeds the sum of its parts. Included in the parts are also some less familiar assertions, notably on Iran, mostly unsourced but delivered with a thump of authority that suggests that Goodman has mined his longstanding contacts with military and intelligence officials.

In exchange for oil before the 1979 overthrow of the Shah, for example, Israel provided Tehran with Jericho missiles and “perhaps advice on how to develop Iran’s nuclear program.” Today, Hezbollah in Lebanon, trained and armed by Iranian Revolutionary Guards, takes its orders from Tehran. Since Israel’s withdrawal from Gaza, Iran’s secret service has turned the strip into “a mini-Iran” by establishing its own units on the ground through the Palestinian Islamic Jihad, a group that rocketed southern Israel last March in order to undermine reconciliation moves between Hamas and the Palestinian Authority. In effect, Goodman concludes, Israel faces Iranian military proxies on its northern and southern borders.

So he thinks the unthinkable and honors no sacred cows. Moshe Dayan, “dazzled by victory” in the 1967 war, advised keeping the Palestinian territories that remain at issue today. Golda Meir, “blinded by Israel’s power...became one of Israel’s most myopic leaders ever,” ignoring Egyptian President Anwar Sadat’s overture for peace in the early 1970s. Had Menachem Begin realized his idea to annex the territories and grant Palestinians citizenship, “there technically would be no democratic Jewish state.” Benjamin Netanyahu’s choice of anti-democratic coalition partners “perpetuated the government anarchy that eventually could be Israel’s democratic downfall.”

And Ehud Barak, “a Netanyahu clone on the Labor side,” unintentionally, perhaps, “became the politician who killed the peace process” by cornering Yasser Arafat in 2000 at Camp David with a grand proposal designed mainly to rescue Barak’s failing political fortunes. He ignored his advisors’ warnings that Arafat could not reach an “end-of-conflict” agreement by abandoning his two key demands: every inch of Palestinian territory and the return of refugees. When the talks failed and the intifada erupted, Goodman notes, the Israeli left’s longstanding argument that land could be traded for peace disintegrated. The right was right in its most dire predictions, thanks to Palestinians who played their lamentable role in the pageant: Ariel Sharon’s unilateral Gaza withdrawal brought no accommodation, only rockets from Hamas.

A seasoned professor could assign this book to students—although it lacks an index and footnotes—because its mosaic of worries and prescriptions offers unusual clarity. That’s no surprise: Reporting from Israel in the 1980s, I knew Hirsh Goodman as a good man to call when I wanted to hear something sensible. He covered the military, then went on to help run The Jerusalem Post and to found The Jerusalem Report. He has now done something rare in the literature of Middle East analysis by being unpredictable and unvarnished in his comprehensive appraisal of his country’s life expectancy.

Yet for all its virtues, his book sounds one false note, badly mischaracterizing President Obama’s “new beginning” address in Cairo in June 2009. There, at a low point in America’s relations with the Muslim world, Obama sought to heal and reassure without minimizing his country’s “strong bonds with Israel,” which he portrayed with unyielding eloquence. “This bond is unbreakable,” Obama declared. “It is based upon cultural and historical ties, and the recognition that the aspiration for a Jewish homeland is rooted in a tragic history that cannot be denied.”

Along with many Israelis and American Jews, however, Goodman heard something different. When Obama followed a powerful paragraph on the Holocaust with a compassionate acknowledgment of Palestinians’ hardships, Goodman heard an allusion “to equivalency between the Holocaust and the plight of the Palestinian people.” You will search in vain through Obama’s words to find any such equivalency. When Obama pledged American support for Palestinian dignity and statehood, Goodman heard him placing all blame on Israel, as if “Israel’s actions were comparable to those of the Third Reich, in context if not in so many words.” No such absurdity exists in Obama’s speech.

Therefore, I would add this to Goodman’s litany of dangers for Israel: that the rapprochement between the United States and the Muslim world will fail. A successful policy based on Obama’s message in Cairo would enhance Washington’s influence on behalf of Israeli-Palestinian peace. Otherwise, if tense distrust prevails between the Arabs and Israel’s sole true ally and benefactor, Israel’s search for acceptance and durability will be a lonely quest.

Mission Accomplished?

2011-10-25T08:40:00.002-04:00

By David K. Shipler

The true results of the two wars ending in Iraq and Libya are likely to be long in coming. The death of Col. Muammar Qaddafi does not close the book on Libya, and the withdrawal of the last U.S. troops in December is certainly not the last chapter in Iraq. The only reliable prediction is that whatever seems obvious today will eventually prove incomplete or incorrect. Especially in the Middle East, wars usually fool the hasty pundits and reward the patient historians.

In 1967, after Israel conquered its Arab neighbors in six days, Israelis celebrated in an ecstasy of triumphalism at the capture of Sinai, Gaza, Golan, and the biblical homelands in the West Bank and the Old City of Jerusalem. David had slain Goliath. A righteous Jewish state had risen from the ashes of the Holocaust. And then gradually the euphoria was erased as the spoils of victory became a burden, as Israel’s occupation and Jewish settlements radicalized Palestinian residents into a security threat. A two-state solution might be easier to achieve today if the Six-Day War had not occurred.

In 1973, after Israel was almost vanquished in the attacks of the Yom Kippur War, recriminations and investigations were directed at Israeli leaders for lack of preparedness. Yet the Arabs’ near victory, it has been argued, enhanced the stature of Egyptian President Anwar Sadat, so that in 1977 he could offer peace by making his dramatic journey to Jerusalem not as a supplicant but as a formidable Arab leader. For signing a peace treaty with Israel, he was then vilified by hardline Arabs, but he got Sinai back by using a pen, not a rifle.

In 1982, Israel’s invasion of Lebanon ousted the Palestine Liberation Organization and secured Israel’s northern border for a time. In conventional terms, it was a victory. But power is perception, and the vaunted Israeli army—so skilled and feared in the Arab world—appeared vulnerable as its stay in Lebanon dragged on. Internal criticism of the “war of choice” weakened Israel’s resolve. Defense Minister Ariel Sharon, who exaggerated the ability of military force to remake politics, failed in his aim to eliminate Syrian influence and recreate Lebanon into a friendly, pro-Western neighbor. Close-in attacks on Israeli troops demonstrated what individuals could do against superior arms—a lesson adapted years later against Americans in Iraq.

Today, the Libyan venture by NATO looks like a cost-free success. With rebels on the ground willing to shed their blood, the Western outsiders escaped unscathed. But does the painlessness of high-tech warfare, waged from the air with impunity, make war more likely? Is public support easier to muster where only dollars are at stake, not lives? Will the U.S. grow cavalier in committing remote-controlled weapons to conflicts where its national interest is marginal? And to what end? The U.S. is being praised by Libyans grateful for our help. But how durable is the admiration? How will we handle the aftermath? What will emerge from the rubble: A free democracy? A new authoritarianism? An Islamic state? Disintegration along the lines of tribe and clan?

The questions about Iraq are no less compelling. Begun under false pretenses, the war toppled Saddam Hussein’s ruthless regime, but it released a torrent of sectarian violence and stained America’s cloak of moral authority. The photographs of abused, humiliated prisoners in Abu Ghraib will never disappear as icons of brutality.

The war removed Iraq from the Arab order of battle threatening Israel, but it also opened a vacuum inviting the spread of Iranian influence, which is now institutionalized through certain Iraqi political parties. In the absence of U.S. troops, will the Iraqi military fragment into factions that include pro-Iranian elements? Will an emboldened Iran be less susceptible to sanctions and less amenable to compromise on its nuclear program? These are the most visible uncertainties.

Less obvious are the possible gains. It is not popular in the U.S. to ask whether the war will eventually hold some benefit, but the questions are worth considering. When a dictator is toppled in Baghdad and a fledgling democracy is established—albeit under the American gun—how does that resonate in Tunis, Cairo, Sanaa, and Damascus? Even if no activists in the Arab Spring would cite Iraq as a model, is there an oblique connection? Did the demise of Saddam not open up imaginations? And what of the terrible toll of killing between Sunnis and Shia? Did that not stir disgust and reflection elsewhere in the Muslim world? What has it said to the faithful about the dynamics in modern Islam? Has it contributed to the fading of al-Qaeda’s appeal? Will it promote a reformation? When raw hatred goes on display, consciousness is often awakened.

These are the riddles of war.

Democracy and Bigotry

2011-10-12T17:46:00.002-04:00

By David K. Shipler

It is autumn. The Arab Spring has lost some of its lush promise in Egypt, and a familiar pattern is emerging. We have seen it elsewhere. More freedom means more license for all expression, not just the admirable and uplifting. The hatreds of one group for another, long buried under the boot of autocracy, are suddenly released, widening the fissures along the boundaries of race, ethnicity, class, language, tribe, or religion. So it has been in nearly every country that has thrown off dictatorship, from the Soviet Union to Yugoslavia, and now to Egypt, where churches have been burned, and Coptic Christians massing in protest have been brutalized by security forces and Muslim toughs. Almost invariably, it seems, the path from authoritarianism to democracy passes through the swamp of bigotry.

Even the most astute observers are usually taken by surprise, as Elijah Zarwan of the International Crisis Group confessed to The Washington Post after last weekend’s clashes in Cairo. “What I saw and heard today is a side of Egypt that I’ve never seen before,” he said. “There have always been sectarian tensions simmering under the surface, but now something very dangerous has been unleashed.”

Similarly, many Czechs were startled to hear themselves vilified by Slovaks as arrogant, cold, and aloof the year after the 1989 Velvet Revolution ended communist rule. In turn, some Czechs stereotyped Slovaks as lazy, criminal, and backward. These early signs of friction did not end violently, so they were mostly invisible to the American press. (The editor of The Washington Post’s Outlook section wasn’t interested in a piece after I visited Prague and Bratislava because there had been no street demonstrations. No protests, no problem, she reckoned.) It was only a little more than two years later that Czechoslovakia divided peacefully into two countries, Slovakia and the Czech Republic.

This bigotry syndrome in post-authoritarian periods should be easily recognizable by now. As the iron hand of dictatorship is relaxed, the bad can happen along with the good. Yugoslavia disintegrated into genocidal “ethnic cleansing.” Hungary’s first post-communist election freed rightist politicians to revive coded anti-Semitic innuendo to support candidates who were “real Hungarians.” As Tina Rosenberg wrote in the spring of 1995, “Today many East Europeans want new devils to blame for their troubles. They seek harsh measures to restore order to a complex and insecure world. The trend grows toward Europe’s historic pathology, intolerant nationalism. Gypsies have been beaten or killed almost everywhere, and police often do little to investigate those crimes. Many countries treat ethnic minorities as second-class citizens. Today many East Europeans listen transfixed as Slobodan Milosevic in Serbia, Vladimir Meciar in Slovakia, and Istvan Csurka in Hungary wave their lists of names of Croats, Hungarians, Jews, or Gypsies.”

The Soviet Union would probably have remained intact if geography and ethnicity had not coincided. The country’s dissolution occurred along the lines of its fifteen republics, each of which had retained its own “national” identity: Armenian in the Armenian republic, Estonian in Estonia, and so on. The Russians governing from Moscow had tried to channel those national affinities into anodyne forms, such as folk dances and crafts. But beneath the touristy externals there coursed a powerful set of deeper identities: language, religion, historical narratives, and resentments toward Moscow as “the center” that imposed its political, economic, and cultural imperialism. When democratization weakened the center, the centrifugal force of divisive nationalisms prevailed—peacefully for the most part, but with minor wars among such smaller ethnic groups as the Chechens and Abkhazians, who sought independence for their enclaves that were contained inside the new countries.

These are cautionary tales about the fragility of both the nation state and the transition to democracy. From the American Revolution on, independent statehood has been the yearning of the colonized, the downtrodden, and the persecuted, who believe that autonomy will bring sanctuary, prosperity, and self-determination; in other words, life, liberty, and the pursuit of happiness.

Yet the nation state is a relatively modern configuration, supplanting the village and the tribe as a means of identity and organization, and not always successfully. In places, nationalism is only a thin overlay across the tribal fault lines of ethnicity, clan, geography, religion, race, language, and class, which remain forceful enough to fragment societies or endanger their democratization.

In Iraq, deposing Saddam Hussein, a Sunni Muslim, unleashed furious violence between the majority Shiite Muslims and his fellow Sunnis. This the Bush Administration’s war planners had not expected. In Egypt, the vigilantism against Christians, who make up 10 percent of the population, has provoked the interim military government into a crackdown that the celebrating protesters in Tahrir Square had not anticipated. It has put in question the possibilities of democracy.

So buried prejudices don’t die. They fester. Sometimes they are exploited by the autocratic regime and remain virulent after the regime falls; that happened to the Turkish minority in Bulgaria. Often the prejudices are tolerated or ignored by the dictatorship, because, without freedom, they pose little risk of disruption. Soviet society was replete with underground bigotry by Russians toward Jews, Georgians, Armenians, Azerbaijanis, and the multitude of peoples in Soviet Central Asia; by Estonians and other minorities against Russians; by the Russian “intelligentsia” against manual laborers who were extolled in propaganda posters; and by whites against black African exchange students, who complained about epithets hurled at them on Moscow’s streets.

But since none of those attitudes actually existed in the artificial reality constructed by Soviet Communism, no education in tolerance could be conducted, no attempts could be made to counter the not-so-secret stereotyping. (I stumbled upon this sensitive topic on a visit to Buryatia, by writing about self-segregation there between ethnic Russians and Buryat Mongols, and was vitriolically attacked in print by the Communist Party Secretary, I’m proud to say.)

For many countries, this is the most overlooked challenge in moving toward political pluralism. Without experience in opening attitudes into the sunlight and giving voice to grievances, without a legal and cultural structure protecting minorities from the majority, and without a painful history of discovering and addressing bigotry, emerging democracies suffer and sometimes falter.

Even if they make it through the swamp, firm ground is never easy to hold. Consider the United States, bitterly schooled in the trials of confronting prejudice. There is no enforced silence from above, thankfully. What restrains hatred is a superstructure of inhibitions embedded in moral precepts, civic duty, and national identity—and a hard-won culture of decency. When established movements depart from those norms, it is time to be alarmed.

Last weekend was such a time. In the nation’s capital, the Family Research Council’s Values Voters Summit—an occasion that drew seven Republican presidential candidates—gave the podium to Bryan Fischer, who habitually rants
against non-Christians, gays, abortion rights activists, and the defenders of civil liberties. The First Amendment protects the religious rights of Christians only, he says. “The President’s been a fascist,” he has declared. With straight soldiers unwilling to commit sufficient violence, he claims, Hitler enlisted “homosexual soldiers [who] basically had no limits on the savagery and brutality they were willing to inflict on whoever Hitler sent them after.” He skips over the part where the Nazis put homosexuals in concentration camps.

“I do question the patriotism of groups like Planned Parenthood,” Fischer says in a video. “They are subverting morality. That’s why I question the patriotism of groups like the ACLU, who are subverting the pillar of religion. They are not patriots, ladies and gentlemen, they are unpatriotic and they are un-American.”

American democracy is large enough and stable enough to contain such hatred and not lose its footing. But Mitt Romney was the only candidate to criticize Fischer from the platform. To stay out of the swamp, a little more help from Republicans would be welcome.

Crime or War: Execution or Assassination?

2011-10-01T16:01:00.002-04:00

By David K. Shipler

The Obama administration should release the secret Justice Department memo justifying the placement of an American citizen, Anwar al-Awlaki, on the CIA’s kill list. The legal questions are far from clearcut, and the country needs to have this difficult discussion. A good many Obama supporters thought that secret legal opinions by the Justice Department—rationalizing torture and domestic military arrests, for example—had gone out the door along with the Bush administration.

But now comes a momentous change in policy with serious implications for the Constitution’s restraint on executive power, and Obama refuses to allow his lawyers’ arguments to be laid out on the table for the American public to examine. Shakespeare’s line in Hamlet on the “insolence of office” comes to mind.

The questions are legion. If U.S. government officials are being accurate and truthful in both their attributed and anonymous statements, Awlaki was placed on the list only in April 2010, after he had “gone operational” and had crossed the line between speech and action. Did the lawyers think that the First Amendment protected even his fiery rhetoric, easily available to potential jihadists by Internet, which had inflamed a few wannabe terrorists? Did they require that he actually take a hand in some planning before he could be considered worthy of the drone strike that killed him in Yemen? Hours after his death, President Obama awarded him a posthumous promotion, calling him for the first time “the leader of external operations for al-Qaeda in the Arabian Peninsula.”

What is the basis for this grand title? There is no doubt about his words—anybody can still hear and read them—but the picture of his actions is sketchy, derived from unverified intelligence. Given how wrong the CIA was about weapons of mass destruction in Iraq, is it really sufficient to base a death warrant on intelligence operatives’ untested assertions? How can their accuracy be checked? Does the Fifth Amendment’s right to due process extend to Americans overseas? Due process, after all, was the Framers’ effort to enhance the accuracy of the criminal justice system. Is there another way that an independent review can be done before a missile is sent in the direction of some named person who is not on a battlefield? Isn’t it strange that under Obama’s reasoning, the president can’t order torture but can order death, that he needs a judge’s authorization to listen to an American’s phone overseas but needs no such judicial approval to end the citizen’s life?

At the bottom of these questions lies the unresolved issue of how terrorism should be classified. Is it a crime, an act of war, or some new category of outrage not quite covered by either domestic or international law? Do the Geneva Conventions need amendment to define the rights and limits of state action against non-state terrorists? Should the United States establish a parallel system of warrants and approvals with checks and balances to regulate lethal force against individuals abroad whose threats are serious but not imminent?

Neither Congress nor the president wrestles with any of this. Bush and Obama have both taken extreme measures of dubious constitutionality, bypassing the legislative and judicial branches. Bush and now Obama have cited the congressional authorization for the use of force after 9/11, but that was a vague and sweeping statement devoid of specifics or limitations. It may seem alarmist to wonder where the limits might be, but where are they actually? Are they geographical? Does the president’s prerogative to have American terrorists summarily executed in the Arabian Peninsula extend to Alabama or Arkansas as well? The question sounds absurd, doesn’t it? We should see that it remains so.

In practice, terrorism has been treated sometimes as a crime, sometimes as an act of war. Judging by terrorism cases that have been prosecuted in civilian courts—and one case in particular—there seems little doubt that if Awlaki had been captured, arrested, advised of his Miranda rights, and brought to the United States for trial, he would have been convicted and sentenced at least to life in prison for his words. That was the result of the trial in the eastern district of Virginia—Pentagon territory—of Ali al-Timimi, a cancer researcher who established himself as a powerful lecturer on Islam.

Several nights after 9/11, Timimi spoke at a dinner in a private home to a small group of young Muslims from northern Virginia. He suggested that they and their families leave the country, and he discussed jihad as holy war, noting that they “could serve the faith as mujahideen in Kashmir, Chechnya, or Afghanistan,” according to an account by Milton Viorst in The Atlantic. Several of the men then went to train in Pakistan, and Timimi was later charged, convicted, and sentenced for “inducing others to conspire” to support terrorism.

Awlaki was more explicit in his statements, so he would probably have spent the the rest of his life in prison for inciting terrorist attacks. Whether a death sentence could have been obtained, however, would have depended on conviction either for treason or for actually contributing to murder. The only “successful” attack he may have inspired was the shooting rampage that killed thirteen at Fort Hood, Texas by army major Nidal Malik Hasan, a psychiatrist with whom Awlaki allegedly exchanged a dozen or more e-mails. But the government has never released the texts, and they did not provoke action by authorities, raising the question of how incriminating they were.

A jury might have taken Awlaki’s own public statements as incriminating enough. Asked about the major in a May 2010 interview, Awlaki was quoted as saying: “Nidal Hasan is a student of mine, and I am proud of this. I am proud that there are people like Nidal Hasan among my students. What he did was a heroic act, a wonderful operation. I ask Allah to make him steadfast, to protect him, and to free him. I support what he did, and I call upon anyone who calls himself a Muslim, and serves in the US army, to follow in the footsteps of Nidal Hasan.”

There are two parts to this statement. The first, claiming some credit for Hasan as his student, was a boastful confession of sorts. The second—Awlaki’s endorsement after the fact and his plea to other Muslims to follow suit—might in ordinary times have been judged too attenuated from any actual act of violence to constitute incitement, and might therefore have been protected by the First Amendment. But now, even a decade after 9/11, this is not an ordinary time, and if a jury could convict Timimi for his more ambiguous words, Awlaki’s could easily have been found guilty for his.

So, why bother to bring the guilty man in for a fair trial? For thorough truth-finding, one could say, or to uphold the pageantry of constitutional justice, which is a crown jewel of our democracy. To lend unquestioned legitimacy to the ultimate sentence, even if it is death, so the world does not look upon America with repugnance. To keep the trappings of civilized order so that we do not become a vigilante state. To stop ourselves from taking a step down a long slope whose ends might be oppression very different from anything we can now imagine. “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings,” Justice Robert H. Jackson once declared.

What if you can’t capture Awlaki in the tribal areas of Yemen? What if his words and plans continue to threaten lives? What if what he does is both crime and warfare, or something in a twilight between the two? We still do not have good answers, we are fumbling around in the half-light, and we do not have leaders helping to find the way.

Under Obama, Civil Liberties Left Impaired

2011-09-02T20:58:00.001-04:00

By David K. Shipler
(Published in the Sept. 19, 2011 edition of The Nation)

Caricatures created by politics never fit comfortably into the Oval Office. Eisenhower was less deferential to the military than he seemed likely to be, Kennedy was not at all beholden to the pope, George W. Bush was smarter than portrayed and Barack Obama has not led a charge from the left—least of all on behalf of the civil liberties that have eroded since September 11, 2001.

In pursuit of both terrorists and common criminals, Obama has perpetuated so many of the Bush administration’s policies that even Republicans might take heart.
Granted, he triggered an outcry on the right when he attempted to close the Guantánamo prison and try the accused 9/11 plotters in federal court, and he repudiated the Bush/Cheney torture policies by ordering interrogators to abide by the Army Field Manual. His moderately liberal judicial nominees, including two for the Supreme Court, have not won him points with the Federalist Society, which grooms young conservatives for the bench.

Otherwise, though, there has been little in his civil liberties record to bother nonlibertarian Republicans. Data collection on individuals has flourished without judicial oversight. People under no suspicion are still monitored clandestinely with Bush-era legal tools. State secrecy is invoked to thwart lawsuits by victims of government abuse. Leakers and whistleblowers are aggressively prosecuted, and federal agencies vigorously resist inquiries made under the Freedom of Information Act. Last spring the hard line against defendants’ rights reached into certain criminal matters that have nothing to do with national security.

Affairs of state tend to drive most presidents toward the center on both foreign and domestic policy, no matter where on the political spectrum they begin, and especially so in the areas of intelligence and law enforcement. Institutional inertia doesn’t allow for quick reversals, federal agencies’ interests transcend administrations and the White House stands at a confluence of perpetual crises. So presidents are hardly inclined to give up their powers, even those they decried as candidates.

Obama is not an exception to the rule. If he were, he would have made good on his promises to rethink the Patriot Act, curb the use of administrative subpoenas known as national security letters and render government more accountable through transparency. He would have bolstered the rights of criminal defendants, pressed for Internet privacy and supported a robust shield law to protect reporters’ confidential sources instead of issuing subpoenas, as his Justice Department has done to James Risen of the New York Times. In short, Obama would have given conservatives, rather than liberals, real reason for distress.

But the country remains stuck in the post-traumatic stress from 9/11, notwithstanding the killing of Osama bin Laden. The specter of terrorism haunts us still, the FBI keeps uncovering little plots and deadly aspirations, and officials are braced for some larger assault. Obama came too soon in the historical cycle to be the reformer on civil liberties that many who rallied for him in 2008 expected. In the past, it has taken time for the country to correct its deviations from constitutional principles, and it did so only when security fears abated: after the virtual war with France that generated the Alien and Sedition Acts under John Adams; after the Civil War; after World Wars I and II; after cold war tensions eased. Nearly a decade after 9/11, Americans have not yet relaxed, and Obama has not yet led us to reflect on what we have done to ourselves.

The question is whether that will occur before the invasive, invisible new powers of surveillance become so routine and convenient that nobody wants them to end. “There is a very real danger,” the American Civil Liberties Union warned last year, “that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a ‘new normal.’” So, while a reformer may come too soon, at what point will he come too late?

It is already getting late. Counterterrorism methods are spilling over into criminal investigations. Law enforcement, beguiled by the new authority to watch and search, uses the tools more broadly than intended. With advancing technology, shortcuts across constitutional protections are tempting police at every level to scoop up troves of data on the guilty and the innocent alike. Cellphone tracking of users’ locations is being done by some local police departments without warrants, according to the ACLU. “Police in Michigan sought information about every cell phone near the site of a planned labor protest,” the ACLU reported in August.

Yet the Obama administration is seeking more authority. The FBI is giving agents more latitude to collect information on people who are under no suspicion by following them for longer periods, mining commercial and law enforcement databases, and rummaging through their trash for information that could be used to pressure them to become informants. Despite these intrusions, the Senate unanimously extended the term of FBI director Robert Mueller for another two years, at Obama’s request.

The administration has also petitioned the Supreme Court for the power to avoid the Fourth Amendment’s warrant requirement when secretly installing GPS tracking devices on vehicles, so that an investigator may do it on a whim without a judge’s signature—that is, without a sworn affidavit that there is probable cause to believe that evidence of a crime will be discovered. Lower courts have given mixed rulings on whether this is constitutional, so the Supreme Court will hear the case late this year.

The administration argues that a GPS is just a high-tech method of tailing a suspect, who has no expectation of privacy on public roads. The US Court of Appeals for the Washington, DC, Circuit found otherwise, noting that the sheer quantity of information creates a picture so complete that privacy is at issue, even if each movement is in the public domain. “A person who knows all of another’s travels,” the court observed, “can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.” The government evidently wants to know all such facts.

* * *

Certain other constitutional principles have not fared well under Obama. In April the Sixth Amendment right to confront evidence and witnesses was left impaired when the Justice Department missed an opportunity to level the playing field in the criminal justice system. The department opposed a rule change that would have clarified prosecutors’ obligations to provide defense attorneys with information that indicated innocence or impeached the credibility of government witnesses. Both requirements, critical to a trial’s truth-finding mission, have long been imposed under Supreme Court decisions, in Brady v. Maryland (1963) and Giglio v. United States (1972), but have never been codified in the Federal Rules of Criminal Procedure.

As a result, subtle misconduct has been endemic. Some prosecutors handicap the defense by concealing information or delaying disclosure, leading in recent years to spectacular miscarriages of justice. The first terrorist conviction after 9/11—of the so-called Detroit sleeper cell—was thrown out because the prosecution withheld multiple pieces of evidence, including a cellmate’s assertion that a government witness had bragged about fabricating his testimony. When exculpatory evidence was discovered after the corruption trial of the late Senator Ted Stevens, Attorney General Eric Holder moved to vacate the conviction but then opposed the broader solution suggested by the trial judge, who asked the rules committee of the federal Judicial Conference to spell out a clear procedure. The committee includes judges, defense attorneys, a law professor and a Justice Department representative.

A rule change would presumably have specified what evidence had to be revealed and when. But the Justice Department countered—as it had under previous presidents—that internal guidelines and training are preferable to a binding rule. Witnesses might be endangered if identified too soon, the government said, and extensive litigation would ensue. This swayed a bare majority, according to a member of the committee, which voted six to five to do nothing.

The Obama administration is not zealous or monolithic. This White House and Justice Department harbor no powerful attorneys rationalizing “enhanced interrogation” or military arrests of Americans inside the country. But they frequently acquiesce to the political right, producing policy contradictions in some areas of the law that may, in the long run, damage constitutional protections.

Take sentencing for narcotics. On the one hand, the administration supported a sentence reduction for crack possession. Congress went along in July 2010 by shrinking the illogical disparity between penalties for crack versus powder cocaine (from 100-to-1 to 18-to-1). The heavier crack sentences have had a dramatic racial impact, for crack use has been more prevalent among blacks, while whites have been inclined toward powder. For years the legal establishment had pushed to eliminate the disparity entirely. But then, after Congress reduced it, the Obama Justice Department argued in court that anyone who committed the crime before August 2010 should receive the higher sentences. Some judges were flabbergasted and registered strong objections. The administration later agreed to limited retroactivity, recommending reduced sentences for some offenders—but not those who possessed weapons during their crime or who had serious criminal records.

* * *

The Fifth Amendment, in the form of the Miranda warning against self-incrimination, has also come under pressure from the administration. In response to Republican complaints that certain terrorism suspects were advised of their rights during interrogation, officials have sought to weaken the protection in terrorism cases. After considering legislation, as some Congressional Republicans have advocated, the administration settled for a less troublesome memo by the FBI. It advises agents to delay reading terrorism suspects their rights—not only to ask those in custody “public safety questions,” as the Supreme Court has allowed, but also “to collect valuable and timely intelligence not related to any immediate threat.” Such unwarned statements would presumably be inadmissible in court.

Similarly, the administration has moved in two directions on the national security letter (NSL), which can now be issued on the slightest pretext by midlevel FBI officials, without judicial oversight, to demand records from libraries, Internet providers, financial institutions, telephone companies and others. Each comes with a gag order warning the recipient to say nothing about it except to an attorney.

On the one hand, Obama’s Justice Department chose not to appeal an important First Amendment ruling by the Second Circuit Court of Appeals that gives a citizen or a company more leverage to challenge a gag order. Previously, you could do so only once a year, and a judge had to defer to the government’s claim that disclosure would endanger national security, diplomatic relations, an ongoing investigation or personal safety. The appeals court shifted the burden to the government to justify a gag order when a recipient objects. That opinion, which the Justice Department has applied nationwide, was codified in a bill approved last spring by the Senate Judiciary Committee. (The measure died after the Democratic leadership failed to bring it to the floor. That left the¨existing law’s tougher approach intact everywhere except in the Second Circuit, meaning that a future administration—or the current one, should it change the policy—could choose to employ the stricter provisions elsewhere in the country. And it could appeal any adverse ruling to the Supreme Court.)

On the other hand, despite its flexibility on the gag order, the administration has made extensive use of national security letters, issuing some 50,000 annually, in part to compile lists of people’s e-mail and phone contacts as a way of assembling mosaics of associations. The NSLs cannot obtain the contents of e-mails and phone conversations; those still require warrants. But last year officials proposed an expansion so that NSLs could include Internet activity under an undefined category called “electronic communication transactional records.” This might include websites visited, search terms and online purchases such as books, so it has met resistance in Congress and is being reconsidered.

The Patriot Act is ripe for reform, but Obama shows no taste for revision, only renewal. He endorsed Congress’s move last spring to extend several expiring provisions until 2015 without even the minor improvements proposed by Democrats on the Senate Judiciary Committee. Hastily passed and signed into law with little debate or opposition six weeks after 9/11, the Patriot Act weakens an array of privacy laws enacted after revelations in the mid-1970s that antiwar and civil rights activists and others had been spied upon by the FBI, the CIA, the IRS, the National Security Agency and military intelligence. An extensive report at the time by a committee headed by Senator Frank Church provoked Congress to regulate domestic intelligence-gathering—something that had not been tried before.

The new law, the Foreign Intelligence Surveillance Act of 1978 (FISA), established a secret court of federal judges to receive classified applications from the FBI and other agencies to bug homes and offices, wiretap phones and demand data on people believed to be agents of a foreign power. The subjects would never know they were targets and therefore could never contest the clandestine orders or rebut the secret conclusions. The Fourth Amendment’s criteria for searches did not need to be observed: no probable cause, no warrant “particularly describing the place to be searched, and the persons or things to be seized.”

This evasion of constitutional protections was conditional, however. The statute demanded that the “primary purpose” be intelligence collection, not criminal investigation, a limitation weakened more than two decades later by the Patriot Act: it changed the wording to “a significant purpose.” That allowed agencies to gather broad categories of information when merely “relevant” to an investigation. The Patriot Act also added as permitted targets those thought to be associated with terrorist groups as well as foreign governments. These and other amendments opened the door to collecting evidence for criminal prosecution without observing the Fourth Amendment’s rules.

Inside the United States, the secret FISA warrants have undoubtedly produced masses of information about citizens and foreigners alike, but inspectors general of various agencies have found little indication that the data have been very useful in unraveling terrorist plots. Rather, would-be terrorists have been undone almost entirely by informants, sting operations or their own bungling. A car bomb fizzled in Times Square, an underwear bomb fizzled in a plane approaching Detroit. Meanwhile, the watchers watch, the collectors collect and the analysts struggle against the overwhelming din of excessive information, trying to pick out the melody from the noise.

In August 2007, candidate Obama delivered a ringing denunciation of Bush’s policies. The speech makes good reading. “No more national security letters to spy on citizens who are not suspected of a crime,” he declared. “The separation of powers works. Our Constitution works…. This administration acts like violating civil liberties is the way to enhance our security. It is not. There are no shortcuts to protecting America.”

Extreme Measures

2011-08-31T21:14:00.000-04:00

By David K. Shipler
(Published in the American Prospect, Sept. 2011)
The abuse of the Constitution that followed September 11, 2001, was neither surprising nor inevitable. It was not a surprise, because it wasn’t the first time in American history—but the sixth, by my count—that fundamental rights had been violated during spasms of fear over national security. It was not inevitable, because prominent voices might have called the country back to its principles. There is no telling whether such appeals would have stood against the tide, but one man’s words did make a difference in the emergency command center at FBI headquarters on Pennsylvania Avenue several hours after the attacks.
Read full article

The Door From Reality to Etheria

2011-08-04T22:05:00.004-04:00

By David K. Shipler

Years ago, a simple footpath encircled the island. I believe this without being certain. Perhaps I am remembering what I merely wished had been true, but I would like to think that I used to circumnavigate this island on foot without difficulty. The trail led clearly as it does now from the little beach on the northeast corner clockwise along the eastern length, meandering through spruce woods close enough to the shore to see the sparkle of the water through the trees, then around the southern tip, slightly inland up the western side, and finally to the sweeping flat rocks on the north. Surely I walked that route with ease.

Today, however, the pathway disappears at the southern end, and a search takes you into thick growth and a tangle of blowdowns that have been uprooted and snapped like matchsticks in the raging winter storms that we summer people never see. I cannot get through, and the trail is so thoroughly gone that I wonder if it was ever there. Now if I want to continue all around the island, I am forced onto difficult boulders on the western shore. Or I can turn back to retrace my steps up the eastern side. If I do that, however, if I give up and take the easy path back, then I return through the door to reality.

You see, something quite unusual has happened here. This island is small and uninhabited, a jewel in an archipelago on the coast of Maine. In a gesture to that endangered concept known as the common good, the owners maintain the path to a certain degree, and visitors who come ashore in their own boats treat the island gently—no fires, no trash.

That in itself is not so uncommon in these parts. Many (not all) island owners are generous, and many (not all) people who take to boats love and care for the pristine coast. What is special about this island is that when no one is looking, fairies also come, it seems, and build little houses of bark and sticks on stumps and rocks, sometimes with moss or a sprig of spruce for a roof. These fairy houses come and go, appearing and disappearing throughout the summer. (By the way, children also come and go on their parents’ boats.)

Several years ago, a rather large fairy, evidently, or a whole troop of them (or flock or team or whatever fairy groups are called) made the pathway into a passage. If you land at that northeastern beach, which is just a pocket of sand tucked surprisingly into the rough granite coast, and take the trail southward along the eastern side of the island, you suddenly come to an old wooden door, once painted white on the side you first see. It is standing across the path, held erect by driftwood boards fashioned into a sturdy door frame and nailed to two trees that straddle the trail. There is no wall, of course, just the door. You could walk around it if you wished by just stepping off the path.

But you wouldn’t want to do that. You wouldn’t want to avoid the door, because the fairies—presumably the fairies--have painted on it in big letters, “Etheria.” Grab the knob, swing the door open, step through, and you plunge into dark thick woods as comforting and alluring as your imagination can imagine. Etheria.

Look back, and you see the other side the door, with the word “Reality” in dark letters against a weathered green, and an arrow pointing back the way you came.

So you see why you would not want to retrace your steps when the path disappears. Before it vanishes, the trail will take you through lighter woods, nearer to the shore, and to another small beach whose sand on close inspection turns out to be made of millions of tiny bits of shell. If the tide is out, you may see that mild waves have drawn in the sand concentric arcs the shape of rainbows. Then, where the path ends, if you make the effort to press ahead with the circumnavigation by continuing around the granite shore, you can return to the northern beach where you began without ever having to go back through the door to reality.

The Mosaic Theory

2011-07-28T21:17:00.001-04:00

By David K. Shipler
(published on the Web site of the American Constitution Society)

The Supreme Court has an opportunity next term to play catch-up in applying the Fourth Amendment to the advanced technology of surveillance. The Court has granted the Obama administration’s cert. petition seeking to overturn a well-reasoned opinion by the Court of Appeals for the D.C. Circuit requiring law enforcement to obtain warrants when secretly installing GPS tracking devices on vehicles.

This could be a mundane case or a landmark, depending on which way the justices go.
The Fourth Amendment has been seriously eroded in recent decades, as documented in my book The Rights of the People: How Our Search for Safety Invades Our Liberties. The Court’s majority could continue the pattern by ruling with the government, carving out yet another exception to the warrant requirement. Or, the Court could decide to set broad new standards to redefine the “reasonable expectation of privacy” in a digital age.

The expectation of privacy is a key legal concept. The courts have ruled that where no such expectation exists, no “search” within the meaning of the Fourth Amendment occurs, and therefore no probable cause or judicial oversight is required.

A driver on public roads has no expectation of privacy, for example, because he can be observed by anyone. Therefore, longstanding precedent holds that a police officer needs no warrant to follow him. The Obama administration argues that GPS is nothing more than an electronic police officer recording a vehicle’s movements in public places, and that no warrant should be demanded, even for prolonged monitoring.

This view has been accepted by the 7th and 9th Circuits but not by the D.C. Circuit, which concluded that the quantity of information collected affects its quality. “Even though each individual movement is exposed” to the public, the three-judge panel ruled, “that whole reveals more—sometimes a great deal more—than does the sum of its parts.” Even where individual pieces of information are not covered by the privacy expectation, the judges decided, there may be an expectation of privacy in the complete picture generated by technology.

“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” the panel wrote. “It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.”

In this case, United States of America v. Antoine Jones, a suspected drug dealer was tracked by GPS 24 hours a day for four weeks, a duration that took the surveillance to an intrusive level, the judges found. “A person who knows all of another’s travels,” they wrote, “can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.”

This is the “mosaic theory.” The government has used it many times to justify its own secrecy, arguing that if bits of information were released, they could be assembled by enemies into a mosaic portraying intelligence sources and methods. That was the Bush administration’s argument for keeping secret the names of more than 1,200 U.S. residents picked up and jailed for months after 9/11. It has been cited by the Obama administration in moving to dismiss civil suits by people who believe they have been targeted by secret surveillance. And officials use the mosaic theory to explain their secret collection of data on large numbers of Americans and foreigners, aimed at piecing fragments of information together.

Now that the D.C. Circuit has turned the mosaic theory around to protect the privacy of the individual, the concept could be applied to other warrantless monitoring. This could be done by the Supreme Court, which has always been slow to adjust to changing technology, by repairing two flaws in the case law.

First, the justices could use the mosaic theory to set limits on the computerization of searches without warrants by requiring probable cause and a judge’s signature before massive data acquisition on an individual.

Second, it could expand the expectation of privacy to include information given digitally to others—bills paid, books purchased, phone numbers called, e-mail addresses contacted—in recognition of the fact that you cannot live normally today without leaving an electronic trail. You should not lose control of personal information just because you convey it to your bank, phone company, and Internet provider. Government should need proper warrants to get it.

Fourth Amendment law needs updating. Will the Supreme Court take this opportunity?

Raising My Debt Limit

2011-07-23T11:27:00.003-04:00

By David K. Shipler

I have decided to raise my debt limit. After due deliberation, negotiation, posturing, and pandering, it has become clear that most of my needs can be paid for by somebody else so that I can reserve my money for my wants. Needs and wants are very different, although I often get them mixed up.

I need a new driveway to replace the crumbling blacktop. The house could use painting inside. The stove is giving us trouble. The deck has some rot. One of my cars is aging. So is my body. The infrastructure needs attention. Somebody has to pay for it.

One of my grandchildren is on the verge of high school, perilously close to the high-tuition college years. The younger ones will follow. This will cost somebody a lot of money. As a proud American, I enthusiastically endorse the loose talk about preserving the future for our children and grandchildren. It warms my heart to hear everybody from left to right touting the value of education, and at the same time squeezing the funds. That builds character, because education is more than reading, writing, and arithmetic. It is frugality, too, and values.

Poor kids in poor school districts must need help to avoid moral corruption, because they get important lessons in frugality right from the outset. While rich kids in some districts have two of each textbook so they don’t have to carry one back and forth between home and school, many poor schools don’t have enough textbooks to go around. So the poor kids learn to share—a useful skill around the dinner table when they don’t have enough of anything to go around. And the pittance we pay teachers guarantees that they're truly dedicated. People who spend all day with our kids shouldn’t be in it just for the money. But I'm open minded. I'm willing to let somebody else come up with the cash to raise their salaries a little.

This is because education is a need. A sound house is a need. Here’s a bit of simple financial reasoning. If I pay for needs out of my own pocket, I won’t get my wants—my Iphone, Ipad, I, I, I, I. Just think if I could have a huge yacht that gets eight gallons a mile, a private jet with pilot at my bid and command, a house in some subtropical paradise with hot and cold running servants.

So I might as well pay for my wants and borrow for my needs. Fortunately, there’s a guy a couple of towns over whose small children work long hours in his garage making essential things that he sells to me for a big profit, and he’s agreed to lend me back what I pay him for that stuff as long as I don’t complain about his child labor. I could work harder, longer, earn more, save--but why bother?

I can have everything without paying for it: like those folks who bought houses they couldn't afford, then treated them like ATM machines to get cash in equity loans. And like our generous elected representatives, who give us all those great government programs like Social Security and Medicare and new bridges and fancy schools and high-tech wars, but don't dare ask us to pay for them with more more taxes.

All this sounds like a great arrangement, so I think I’ll raise my debt limit.

Constitutional Detours

2011-07-08T22:24:00.001-04:00

By David K. Shipler
(adapted from The Rights of the People: How Our Search for Safety Invades Our Liberties, published in the Dartmouth Alumni Magazine, July-August 2011)

The glass through which Americans could see their Constitution was gradually losing clarity. Small, superficial cracks and microscopic crystals, discovered by National Archives technicians in 1995, would eventually bring opaqueness, and the hand-written codes of freedom would disappear from view.

Behind the cloudiness, moreover, the huge pages were endangered by the slightest of threats: an incremental rise in humidity inside the massive cases, which had been constructed in 1952 to house the Declaration of Independence as well as the Constitution and its Bill of Rights.

So, with the most advanced technology applied to preserving the nation’s most venerable treasures, new encasements were designed and tested against extremes. Sealed with materials developed for space flight, prototypes were submerged in ice and subjected to heat. Bases were fabricated of aluminum, and frames of titanium were plated with nickel and gold. When the modern containers were ready in 2003, the founding documents were carefully placed under thick, tempered glass. The cases were filled with the inert gas argon and fitted with ports and sensors for constant monitoring to keep the humidity at 40 percent, the temperature at 67 degrees Fahrenheit.

The seals, designed to last longer than a century, admit no outside air and no tiny insects that might gradually eat away at the precious sheets of parchment. If sheer science is sufficient, the Constitution will survive even the subtlest assault.
The faded words on the parchment’s surface have reached deeply into the human experience, yet Americans have struggled to live up to the principles they enshrine. Spasms of fear about national security have pushed us away from constitutional protections six times by my count, including the period that began September 11, 2001. If earlier patterns are repeated, today’s detour will end as the system proves self-correcting, and the country will look back on the violations with shame. So it was in five previous episodes.

A Bright Constellation Dims

Americans had scarcely gained their constitutional footing before they slid off course the first time, in 1798, seven years after ratifying the Bill of Rights. The French Revolution of 1789 triggered declarations of war on France by a coalition of European monarchies threatened by a domino effect. The United States sought neutrality to protect its fledgling trade by sea, but Britain and France seized hundreds of American ships.

A conciliatory peace spared the United States a war with Britain, and a virtual war with France arose, stoking exaggerated fears of French subversion and invasion at home. Congress passed and President John Adams signed three laws curtailing liberties. Under the Alien Enemies Act, whose powers remain in the U.S. Code today, citizens of a country in a declared war with the United States could be detained and deported. Under the Alien Friends Act, the president could seize and remove any foreign citizen, even of a friendly nation, without anything resembling due process. Many French were driven from the United States by a poisonous mood of suspicion and the threat of arrest.

The third measure, the Sedition Act, made it a crime “to write, print, utter or publish…any false, scan- dalous, and malicious writing or writings against the government of the United States, or either House of Congress, or the President, with intent to defame…or to bring them…into contempt or disrepute, or to excite against…the hatred of the good people of the United States….” Several influential American editors were imprisoned for acerbic criticism of President Adams. So was a Republican congressman from Vermont, Matthew Lyon, who had voted against the act and became its first victim after accusing Adams of “a continual grasp for power” and Alexander Hamilton of “screwing the hard-earnings out of the poor people’s pockets.”

The young democracy corrected itself. The Sedition Act contributed to public resentment, which helped the Republicans drive the Federalists out of power; it expired with the Alien Friends Act at the end of Adams’ term. Everyone convicted under the Sedition Act was pardoned by Thomas Jefferson, the new president, who in his inaugural address called the rights guaranteed by the Constitution “the bright constellation which has gone before us and guided our steps through an age of revolution and reformation.” He urged that “should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.”

Lincoln Oversteps
Speech was suppressed on both sides of the Civil War. Southern states outlawed abolitionist campaigning out of fear that it might stir slaves to rebel; Confederate President Jefferson Davis suspended the writ of habeas corpus and declared martial law. In the North several hundred newspapers were closed for various periods, at least eight major papers were banned from the U.S. mail for criticizing the war policies, and the Union Army under martial law seized men as suspected secessionists. A few were Northern editors who opposed the draft and the war and advocated negotiation with the Confederacy; one was a prominent politician. President Abraham Lincoln, who tolerated considerable vitriolic dissent, nonetheless suspended habeas corpus to evade due process for alleged Confederate sympathizers, thereby denying prisoners the basic right to challenge their incarceration before a neutral magistrate.

Chief Justice Roger Taney, sitting as a circuit judge, ruled that only Congress—not the president—could suspend habeas. Since civilian courts were operating, Taney added, they had jurisdiction, not the military. Again after the war, the Supreme Court found that if civilian courts were functioning, they could not be replaced by military tribunals.

Strife During Wartime

Against a groundswell of protest about the United States’ entry into World War I, President Woodrow Wilson warned that infiltrating German spies had “set criminal intrigues everywhere afoot against our national unity” and argued for “a firm hand of repression” against the “disloyal,” who “had sacrificed their right to civil liberties.”

The remedy, the 1917 Espionage Act, facilitated the prosecution of 2,000 German-Americans, labor union leaders, socialists and anarchists. Socialist newspapers were effectively barred from the mail, sometimes by removing their second-class postage privileges. In 1918 Congress added the Sedition Act—an echo of the 1798 version—which criminalized “any disloyal, profane, scurrilous or abusive language” about the American form of government, the Constitution, the flag, the military or its uniforms. The law penalized those who “by word or act oppose the cause of the United States” during wartime.

Convictions that reached the Supreme Court were upheld, most of them unanimously. It was a period of acute intolerance. The suppression of speech was endorsed by the American Federation of Labor, the American Association of Universities (urging that professors be fired for antiwar statements) and the American Bar Association (which condemned attempts “to hinder and embarrass the government” as “giving aid and comfort to the enemy”). The scope of permissible debate narrowed on other issues as colleges came under pressure from donors, religious leaders and government to dismiss faculty who were on the “wrong” side of Prohibition, immigration and Darwinism. In reaction after the war, universities adopted tenure to protect faculties against intrusions into academic freedom. The Espionage Act remains, but its most draconian provisions were eliminated in later legislation.

The Stain of Internment

Individual rights succumbed to national fear during World War II. Leftists and rightists were prosecuted under both the Espionage Act of 1917 and a new measure, the Smith Act of 1940, whose prohibition against advocating the overthrow of the government “by force or violence” was stretched to cover mere membership in communist or fascist organizations. (It is still on the books.) President Franklin D. Roosevelt, a civil liberties supporter in the abstract, repeatedly pressed his reluctant attorneys general to arrest his isolationist critics.

More than two dozen leaders of the Socialist Workers Party in Minneapolis, Minnesota, were indicted for opposing entry into World War II and organizing work stoppages in the defense industry; about the same number of fascist leaders were prosecuted in the Great Sedition Trial of 1944, which ended without convictions but effectively curbed speech on the extreme right. German-born Americans who expressed sympathy for Germany were stripped of their U.S. citizenship in 146 cases. State laws outlawed the uniforms of the pro-Nazi German-American Bund and the employment of communists, whose candidates were also barred from the ballot in 15 states.

After Pearl Harbor was attacked on December 7, 1941, Roosevelt invoked the 1798 Alien Enemies Act to designate 900,000 Japanese, Italians and Germans as enemy aliens required to register, to stay within five miles of their homes and to observe a nighttime curfew. They could be searched without warrants and were prohibited from owning guns, cameras and shortwave radios. Some 120,000 ethnic Japanese, about 80,000 of them American citizens, were expelled from their homes and locked up in 10 camps from California to Arkansas out of suspicion that they might aid Japan. They were implicated by their race and national origin alone, not by anything they had done. Their internment, upheld by the Supreme Court, is now almost universally regarded as a stain on American honor.

Cold War Fervor

After the Allied victory the Cold War against Soviet-led communism sowed fear into fertile ground. Legitimate criticism was confused with subversion. Communists and non-communists who campaigned for workers’ rights and against corporate power were denounced as tools in the Soviet Union’s designs on American security. Where earlier anxieties had been focused mainly on foreigners, Americans now stood condemned.The House Un-American Activities Committee, which compiled dossiers on 1 million suspected communists, ruined many loyal Americans’ professional lives. Senator Joseph McCarthy waged a cunning campaign of character assassination against supposed communists in government and the Army. And President Harry Truman’s loyalty program permitted the FBI to collect unchallenged rumors and innuendo about millions; an estimated 6,300 employees of private firms and 11,000 of federal, state and local governments were dismissed for allegations of disloyalty that they were never allowed to see or rebut.

Beginning in this postwar era and stretching through the Vietnam War into the 1970s, government actions descended underground, with targets spread exponentially beyond suspected communists to political, labor, civil rights and antiwar organizations that dared to push against the status quo.

Not only the FBI—through its counterintelligence program called COINTELPRO—but also the CIA, the National Security Agency (NSA), the Internal Revenue Service and Army intelligence were secretly mobilized against dissident groups and individuals. The FBI routinely requested tax files on activists, and the IRS audited and investigated about 8,000 people and 3,000 groups “of predominantly dissident or extremist nature,” according to an internal 1969 memo. The targets included the American Library Association, the American Civil Liberties Union, the National Association for the Advancement of Colored People and the National Urban League.

From 1947 to 1975 the NSA intercepted millions of private telegrams going into and out of the United States, just as it has done with emails and phone calls since 9/11. Nearly 250,000 first-class letters were secretly opened and photographed by the CIA from 1953 to 1973, and the FBI did the same with at least 130,000 letters from 1940 to 1966. The FBI compiled a list of 26,000 suspicious Americans to be rounded up in case of a “national emergency.” Dossiers were assembled on student activists in case they someday applied for government jobs. Once a congressional investigation exposed the surveillance, Congress responded with a series of privacy laws, including the Foreign Intelligence Surveillance Act (FISA) of 1978, which were then weakened after 9/11.

The Age of Terrorism

The Patriot Act, amending those privacy statutes, passed overwhelmingly with little debate six weeks after the attacks. It broadened FISA, which regulates domestic intelligence gathering through a secret court that issues clandestine warrants that don’t require probable cause and particularity, as the Fourth Amendment demands. The law originally authorized this shadow system exclusively to collect intelligence, but the Patriot Act frees investigators to use it for criminal cases as well.

Even that permissive FISA system wasn’t permissive enough for President Bush, who secretly ordered the NSA to intercept Americans’ communications by phone and Internet. The suspicionless sweeps, effectively legalized by Congress in 2008, continue.

Further, by expanding administrative subpoenas known as national security letters (NSLs), the Patriot Act shot holes through three laws that had guarded the privacy of Americans’ credit, banking and communications records. Without suspicion of a crime and with no judicial oversight, NSLs can now be issued by the head of any FBI field office to librarians, Internet providers and financial institutions, among others. Each of the 50,000 NSLs being served annually comes with a lifetime gag order.

One measure that could change the country if fully implemented is the executive branch’s power to subject civilians to military trial. Under the Military Commissions Act, passed in 2006 and revised in 2009, the president may unilaterally designate anyone an enemy combatant—even inside the United States—and try non-citizens before military officers, with no judicial involvement except on appeal. Applied only to Guantanamo detainees so far, this mechanism has no geographical restrictions. Nothing in the law prevents its employment in Alabama as well as Afghanistan.

These six deviations show that rights cannot rely on officials’ benevolence. They rely on an ingenious constitutional system that has pulled us back from our periodic wanderings. Let’s hope it does this time, and soon, before counterterrorism’s shortcuts through our rights become the new normal.

Free to Search and Seize

2011-06-25T13:01:00.001-04:00

By David K. Shipler
(published on The New York Times Op-Ed page June 23, 2011)

THIS spring was a rough season for the Fourth Amendment. The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime.

In addition, Congress renewed Patriot Act provisions on enhanced surveillance powers until 2015, and the F.B.I. expanded agents’ authority to comb databases, follow people and rummage through their trash even if they are not suspected of a crime.

None of these are landmark decisions. But together they further erode the privilege of privacy that was championed by Congress and the courts in the mid-to-late-20th century, when the Fourth Amendment’s warrant requirement was applied to the states, unconstitutionally seized evidence was ruled inadmissible in state trials, and privacy laws were enacted following revelations in the 1970s of domestic spying on antiwar and civil rights groups.
For over a decade now, the government has tried to make us more secure by chipping away at the one provision of the Bill of Rights that pivots on the word “secure” — the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.”

The founding fathers, who sought security from government, would probably reject today’s conventional wisdom that liberty and security are at odds, and that one must be sacrificed for the other. In their experience, the chief threat to individual security came from government itself, as in the house-to-house searches conducted by British customs officers under blanket “writs of assistance.” After the Boston lawyer James Otis Jr. eloquently challenged the writs in 1761, John Adams, who was present in the crowded courtroom, wrote of the audience’s rage, “Then and there the child independence was born.”

Independent America’s answer to those searches was the Fourth Amendment, with its requirement that law enforcement have probable cause to believe that evidence of a crime can be found at a particular place and time before a judge issues a warrant.

The ingenious feature of this demand is that it makes criminal investigations more efficient and accurate, even as it preserves liberty. If that rule and others in the Bill of Rights are followed, the police waste less time chasing false leads, make fewer erroneous arrests and leave the community safer.

In other words, the framers handed down a system in which liberty and security were fused, one inseparable from the other. So it is hard to see how safety has been enhanced by the post-9/11 expansion of counterterrorism surveillance, which has uncovered hardly any known plots and instead burdens analysts with so much irrelevant noise that they have trouble hearing the ominous melodies.

A recent study by the Breakthrough Institute found only two cases that benefited from the secret warrants made easier by the Patriot Act. The rest, the report concluded, “were broken open due to the combination of well-deployed undercover agents, information from citizen or undercover informants and tips from foreign intelligence agencies.” The two exceptions were the Portland Seven, Oregon Muslims who tried to travel to Afghanistan to fight with the Taliban in 2001, and Najibullah Zazi, a Colorado resident from Afghanistan who pleaded guilty last year to planning a suicide attack in the New York City subways.

Two successes in nearly a decade might be enough to satisfy a fearful public, but it is worth noting that both cases began with old-fashioned tips — the first from a landlord, the second from Pakistani intelligence linking Mr. Zazi to Al Qaeda — and could have been pursued with the law enforcement tools available before 9/11.

The false dichotomy of liberty versus security is accompanied by another myth: that someone else’s rights are always the ones at risk, that I can give up their rights for my safety. It seems a comfortable bargain. The terrorist is covertly monitored, the drug dealer is searched and the upstanding citizen is protected.

But it does not always work that way. The constitutional system of case law and precedent applies rulings on rights universally. So, legally, if a black man in a poor neighborhood can be stopped and frisked with minimal reason, so can a white woman in a rich neighborhood — even if the police tactics differ.

American history is replete with assaults on liberties that first target foreigners, minorities and those on the political margins, then spread toward the mainstream. The 1917 Espionage Act, for example, was used to prosecute American labor leaders and other critics of the government, and the 1798 Alien Enemies Act was revived after Pearl Harbor to intern American citizens of Japanese ancestry. A similar process is taking place now, as the F.B.I. has begun using counterterrorism tools to search, infiltrate and investigate groups of American peace activists and labor leaders in the Midwest.

The Fourth Amendment is weaker than it was 50 years ago, and this should worry everyone. “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson, the former chief United States prosecutor at the Nuremberg trials, wrote in 1949. “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.”

Working Near Poverty at Wal-Mart

2011-06-21T18:59:00.001-04:00

By David K. Shipler

The Supreme Court’s decision that female employees of Wal-Mart did not have enough in common to be certified as a class in a discrimination lawsuit took me back some years, to conversations I had with Caroline Payne, who worked at Wal-Mart and elsewhere. Here is an excerpt from my book The Working Poor.

The new millennium arrived in a crescendo of American riches. The nation wallowed in luxury, burst with microchips, consumed with abandon, swaggered globally. Everything grew larger: homes, vehicles, stock portfolios, life expectancy. Never before in the sweep of human history had so many people been so utterly comfortable.

Caroline Payne was not one of them. A few weeks after New Year’s Day, she sat at her kitchen table and reflected on her own history.
Two of her three goals had been achieved: She had earned a college diploma, albeit just a two-year associate’s degree. And she had gone from a homeless shelter into her own house, although it was mostly owned by a bank. The third objective, “a good paying job,” as she put it, still eluded her. Back in the mid-1970s, she earned $6 an hour in a Vermont factory that made plastic cigarette lighters and cases for Gillette razors. In 2000, she earned $6.80 an hour stocking shelves and working cash registers at a vast Wal-Mart superstore in New Hampshire.
“And that’s sad,” she declared. “I got thinking about that the other day. I’m only making eighty cents more than I did more than twenty years ago.” Or less, taking into account the rise in the cost of living. And she did not know then how much sadder it would become.

Caroline’s was the forgotten story of prosperity in America. With indifference, the economic boom at the turn of the century passed her by. The reasons were not obvious, but they were insidious. She was not the victim of racial discrimination—she was white. She was not lazy—she was caustic about colleagues and relatives who were. She was punctual, rarely out sick, willing to do night shifts, and assiduous in her work habits. The Wal-Mart manager, Mark Brown, called her “a nice lady” with lots of enthusiasm. “She’s self-driven,” he observed. “She’s always willing to learn and better herself. She’s got potential. She can definitely move up.”

But she did not move up. She had never moved up. And that ceased to amaze her, it had been going on for so long, in job after job after job. She was astonished only by Mark Brown’s praise. “I’m surprised,” she remarked when I told her what he had said. She was stacking blank video tapes on a shelf. “I didn’t think they liked me here. People don’t usually say nice things about me.”

Somewhere along this track that leads nowhere, a good many Americans give up on the dream. They sink back onto welfare, or they stop imagining themselves as foremen or department heads or office managers. Caroline was fifty, with so many years of disappointment that her moments of despair seemed quite reasonable. She had been treated occasionally for depression, and she once tried to commit suicide with an overdose of aspirin. Still, she kept striving. She called herself “luckylady” in her e-mail address. She said, “Have a wonderful day” on her answering machine. She did not have big thoughts about corporate profits or dark judgments about society’s unfairness; she just tried for basic financial security. Her persistence seemed so incongruous that it played like a dissonant melody against the monotone of job stagnation. Again and again, she applied to manage one sales department or another at the store, and again and again she was passed over in favor of men—or, she observed wryly, women who were younger and slimmer.

“I work my butt off, excuse my language. I’m there most of the time,” she said sharply, “but that don’t matter to them.” She was paid a dollar an hour more during nighttime shifts, nothing close to what her flexibility was worth to a store that stayed open around the clock. Trying to get ahead, she was always available to change hours and fill in, even during evenings when she had to leave her fourteen-year-old daughter, Amber, home alone. Without a car, Caroline had a twenty-minute walk each way, trekking back and forth at odd times of night in all kinds of weather. One cold February day, walking gingerly along icy streets to save her temperamental back, she trudged from her house to her job at her normal time of 10 a.m., only to be told to come for a shift beginning at 1 p.m. instead. So she made her way home and then returned to the store: three trips consuming one hour before earning her first dime of the day. This she did willingly—even after the store had hired a man, whom she knew, at a wage higher than hers. “He’s working in electronics at night, but you go in and he’s standing around looking at them TVs or doing something else,” she said in a soft whine. “He doesn’t keep busy or do anything, and they don’t say nothing. And I’ve complained about it, and I’ve been practically told to mind my own business.”

Nor could she compete with the slender women, who received flirtatious attention from the assistant manager. “You notice a lot of these young girls get these jobs,” Caroline declared. “My age shows on me terribly. I’ve had people think that I’m Amber’s grandmother, I’ve had such a hard life.”

The people who got promotions tended to have something that Caroline did not. They had teeth. Caroline did not have teeth. If she had, she would not have looked ten years older than she was. But her teeth had succumbed to poverty, to the years when she could not afford a dentist.
. . .

Anyone who walked all the way around the outside of the Wal-Mart superstore on Route 103 would walk a mile, Caroline said. The place was immense. It sold everything from lawn mowers to ground beef, underpricing smaller stores that were struggling to survive in the center of town. Its 300 to 330 employees, who came and went seasonally, wore Wal-Mart’s uniform of blue smocks and friendly smiles, trained as they were to be surprisingly helpful to customers.

Mark Brown, the manager, could pay his people more without raising prices, he conceded. He sat at a table in the store’s snack bar, watching the part of the grocery section he could see, listening to the public address system’s calls for help at the registers, his eyes darting around this corner of his fiefdom like a school principal waiting for the next catastrophe. He was thirty-one, but he looked as young as a college kid and spoke with the twang of his native southeast Missouri. He had come from another store in Georgia and was learning to ski here in New Hampshire.

His employees started at $6.25 an hour, earned an extra dollar at night and another 25 cents “for going to the front end,” which meant working one of the twenty-four cash registers. And if he started them at $8 an hour, say, instead of $6.25, how would that change the economics of the store? “Hmmm. I don’t think it would change at all.” He wouldn’t have to raise prices? “No. We’ve got a corporate pricing structure. And the way we do things, we go out and we check our competition every single week. Every department manager in this store goes out once a week and checks competition, and that’s what determines our prices. We have a core price structure that we set regionally, by areas. Definitely the base price here would be probably higher than what it is in Arkansas, where there’s a cheap cost of living. So it would be higher here, but it would still be standard to this area. And then after they give us that base, then we go out and check our competition, and if we’re gettin’ beat, we lower our prices.”

So there’s enough profit to absorb an increase from $6.25 to $8? “There would be, because if we were having to raise our wages, then evidently everybody else would be too, and if we make sure we’re low enough, our competitors’ customers are gonna shop with us.” Would wage increases have any effect at all? “We’d have to cut corners on other things like, you know, we may not be able to put all the pretty balloons up all over the store. The non-necessities we’d have to cut back on.”

Three days later, Wal-Mart Stores, Inc. announced a net income of $5.58 billion for 1999, up 26 percent from the previous year.

Caroline was bouncing from one department to another, from one shift to another, but her pay stayed within a narrow range, beginning at $6.25, going to $6.80, sometimes up to $7.50 if she worked at night. So unpredictable were her hours that she couldn’t work a second job, which would have helped her cash flow. She kept applying for higher positions and kept hearing that she needed a bit more experience.

“I did make Cashier of the Month for November,” she reported happily. “I’ve collected over fifteen hundred dollars for the World War II veterans memorial in Washington. That’s what got me Cashier of the Month.” She also persuaded customers who checked out at her register to buy a total of seventy-two tickets to a Bruins game in Boston to raise money for the Claremont fire department, and that won her a weekend getaway from Pepsi. She could take herself and three other people to a paid stay in any Marriott she chose, anywhere. “But I have to get there,” she said. That was the catch. So it was going to have to be nearby, someplace that somebody would drive her. Hawaii never entered her mind, not even New York; she considered only places in New Hampshire. “I think there’s one up here in Lebanon,” she said. “If I could get somebody to take me to Manchester, Amber likes to look at the malls. I’ve never been down there. Just to look at things.” In the end, Caroline, Amber, a friend of Caroline’s, and her child drove north to a hotel in Bethlehem, New Hampshire, where they visited a small shopping center in North Conway.
. . .

Wal-Mart had such a big turnover of personnel that Mark Brown didn’t feel comfortable saying how high it ran. But he was clear about the reasons in the years of prosperity. “A lot of it I think has to do with the fact that our economy’s so strong today. You could go anywhere in this town, anywhere outside of town, and you see the signs, ‘Now Hiring, Now Hiring.’ I mean, if they’re not treated right, all they got to do is just walk out the door. It’s very competitive, very competitive.” So Wal-Mart tried to hold people by providing them with a share of the company’s profits. Eighty percent came in stock, the rest in cash, maintained in an account in which an employee began to be vested after a year, and was fully vested after seven.

But this enticement was not working for Caroline. She had taken out a second mortgage, for $19,000, to replace her roof, doors, and windows, and she needed money now. “The way they schedule your hours,” she said, “sometimes it’s ten to seven, sometimes it’s nine to four, sometimes it’s seven to four, sometimes you work later in the evenings, and you never know what day. You don’t always have the same two days off. Like I was supposed to have last Sunday off because of Amber’s recital. I asked for it off. Well, I got home and later that night there was a message on my phone: ‘Can you please come to work for awhile?’ I did. I did. It was overtime. I never said no to them. But why couldn’t they have the decency to pay me a little bit more?”

That was the way the store treated “associates” when the economy was booming. In more depressed parts of the country and during recessions, however, some Wal-Mart managers were accused of forcing employees to work before punching in or after punching out to avoid paying overtime as required by law.
. . .

Caroline never had the overtime problem in her New Hampshire store, but in six Southern states employees filed a class-action suit against the company for ordering them off the clock as their weekly time approached forty hours. Their attorney calculated the benefits to the firm: If each of 250 hourly-wage “associates” in a single store worked just one hour of unpaid overtime a week, that would total 250 unpaid hours a week, 1,000 a month, 12,000 a year—and there were over 300 Wal-Mart stores in Texas, producing savings in that state alone of more than $30-million that should have been paid to employees.

Caroline did not suffer from any violations of law, as far as she could tell, but her career went nowhere. Mark Brown, the manager who liked her, got transferred to Pennsylvania, dimming her prospects for advancement. So after a year and a half at Wal-Mart, she signed up with a temp agency, which found her a $7.50-an-hour, daytime job Monday through Friday assembling wallpaper sample books. And she had the pleasure of telling Wal-Mart’s assistant manager that she was leaving for higher pay.

“I’m just hoping they’ll be sorry someday,” Caroline said.

“Because they don’t know who they’re missing,” Amber added. “She’s such a nice mom, and she’s pretty cool.”

Bin Laden's Immortality

2011-05-27T11:00:00.004-04:00

By David K. Shipler
(Published by The Daily Beast/Newsweek May 26, 2011)

The damage that Osama bin Laden did to the United States went far beyond the attacks of September 11 and will outlive him, at least for a time.

In search of safety from his grand scheme of unending terrorism on American territory, the country jeopardized key constitutional rights at home, and most of those compromises remain in force, both in law and in practice.
In nearly every area except torture, which President Obama formally ended with an executive order, enhanced government powers adopted by the Bush administration have been retained.

The measures strengthened the executive branch at the expense of the judiciary, disrupting the Constitution’s calibration of checks and balances. Amended laws empowered mid-level officials to collect personal data on millions of citizens and weakened the Fourth Amendment’s guarantee against suspicionless searches. Aggressive investigations undermined the First Amendment’s protection for unpopular speech by targeting certain Americans for saying certain things, even in private. The Fifth Amendment’s shield against self-incrimination was punctured by several criminal cases based on statements given in coercive conditions overseas.

Because terrorism itself knows no international boundaries, it has been impossible to seal the United States from all rights violations the government has committed abroad. Counterterrorism tools do not necessarily have geographical limitations. The Military Commissions Act, for example, applies inside the country as well as outside, and while it is currently being used only in Guantanamo, the law also enables the military to arrest and try non-citizens living legally inside the United States, with no role for the judicial branch except on appeal.

We cannot put a final end to bin Laden’s destructive legacy unless we repair the liberties eroded in his name.

Similarly, clandestine foreign operations have sullied the civilian courts. The Obama administration has successfully continued President Bush’s invocation of state secrecy to thwart lawsuits by individuals who claim to have been seized abroad and flown by the CIA for torture in Egypt, Morocco, Afghanistan, and elsewhere. The Obama Justice Department’s secrecy argument has also persuaded federal judges to block Americans from suing over warrantless surveillance done during the Bush years.

None of this seems likely to change. Although the President entered office on a pledge to revisit the 2001 Patriot Act, which shot holes through various privacy statutes, he has called for no significant revisions in the expansions it made to the Foreign Intelligence Surveillance Act (FISA), which authorizes secret courts to permit secret surveillance.

He voted in 2008—as a senator running for president—to amend FISA further to effectively legalize Bush’s widespread monitoring of voice and Internet communications transmitted to or from the United States. The program requires no individualized suspicion and stirred an outcry when it was exposed. But now, with the administration’s blessing, Congress just extended those FISA amendments and three controversial provisions of the Patriot Act until June 1, 2015.

Bin Laden’s death may not ease the trauma or the threat of terrorism, but nearly a decade after 9/11, the time has come for a serious review of the security measures enacted during that spasm of fear.

The intervening years have been instructive. To begin with, very few terrorist plots have been uncovered by the sweeping powers to intrude into innocents’ private lives under various post-9/11 statutes, according to reports by the inspectors general of key intelligence and law-enforcement agencies. Analysts and translators are said to be drowning in so much information that crucial dots are not being connected.

Further, officials are watching people who are suspected of nothing, and are two or three times removed from those believed to have links with terrorist groups. The purpose, to diagram webs of contacts, relies heavily on the National Security Letter, a subpoena that can be issued by the head of any FBI field office. Broadened by the Patriot Act, it requires neither probable cause nor a judge’s signature, and it comes with a gag order (which may be challenged in court) prohibiting the recipient from saying anything about it to anyone except a lawyer.

This is an example of President Obama’s unwillingness to relinquish powers he denounced as a candidate. “No more National Security Letters to spy on citizens who are not suspected of a crime,” he declared categorically on Aug. 1, 2007, early in his campaign. But on his watch, 50,000 have been served annually on libraries, banks, Internet providers, telephone companies, and other institutions holding private records of millions of Americans. Instead of asking Congress to place this device under judicial oversight where it belongs, officials last year suggested extending the letter’s reach into unspecified Internet activity.

Undoubtedly the world from the White House looks scarier than the world from the campaign trail. But we cannot put a final end to bin Laden’s destructive legacy unless we repair the liberties eroded in his name.

Notes From a Book Tour

2011-05-19T16:02:00.001-04:00

By David K. Shipler

Last evening a high school student handed me a note after a talk I’d given on civil liberties. It was at Vroman’s in Pasadena, California, one of the dying breed of precious independent bookstores holding on for dear life here and there across the country.

The student didn’t say anything, just smiled shyly, gave me a sheet of lined notebook paper folded in thirds, and turned away. I wish she had stayed, because when I had a moment later to read what she’d written, I wanted to talk with her.

On the outside of the note were large letters: “Thank You!” She had underlined the words and had drawn a huge, bold-faced exclamation point. I don’t feel free to give her name without her permission, but here is what she printed in a fine, precise hand:

“Dear Mr. Shipler,

Tonight was really eye opening and inspirational to me. My name is _____ and I am a freshman at ________. What you were discussing was very insightful to me as a growing teenager. Teens now depend on the media and based everything on the media, thus making them choose wrong choices. I, personally, wanted to thank you for sharing your experiences with the narcotics and gun patrol. You have helped me decide on my career choice, which now is in law enforcement. Your words are very inspirational to me as a teenager. Thank you.

Sincerely, _______

P.S. Please excuse my poor English, I sincerely apologize for that.”

Her mention of “the narcotics and gun patrol” referred to Washington, D.C. police units that allowed me to travel with them as I watched how the Bill of Rights played out in the dark nights on dangerous streets in the nation’s capital, a mile or two from the Supreme Court. There, the Fourth Amendment often gets bruised and bent, and the chapters about the police open my new book, The Rights of the People: How Our Search for Safety Invades Our Liberties.

Writers have various reasons for spending years on a book. Money is hardly ever among them, because as well as I can calculate, it works out to about 27 cents an hour. I am driven mainly by curiosity: I need to unravel some issue, problem, or condition until I understand it as well as I can. I figure that if I’m curious, other people will be as well, and may want to read about what I’ve learned.

But there is another goal, too—a wish, perhaps, which no author can be sure will be granted. The young woman in Pasadena granted me that wish. It is to touch someone deeply enough to get her thinking about what place she wants to take in the world, how she can contribute, how she can give back.

Occasionally over the years, young people have told me that they have made significant choices because of what they have seen of the world through the pages of books, including mine. Several have said that they entered the efforts at constructing Israeli-Palestinian dialogue after reading Arab and Jew: Wounded Spirits in a Promised Land. One woman credited me too generously with emboldening her to reach out and talk with both sides of the conflict, and she became a Mideast negotiator for the State Department. Several students have mentioned over the years that their careers were decided in part by what they had read about race in A Country of Strangers: Blacks and Whites in America, and about poverty in The Working Poor: Invisible in America.

And now comes the high school freshman in Pasadena. I know nothing more of her thoughts. Why law enforcement instead of, say, defending the accused? To taste the excitement of the dark streets? To reform the police? To honor the Constitution as an officer who faithfully observes the rights it protects? She has many years to go, of course, and will come to many crossroads before she settles on a path, but I wish I could have had a few words with her to find out more about what she heard that made her think.

I say all this not to brag about my books in particular, but to brag about books in general, and to note how open some young Americans still are to the ideas and complicated realities conveyed in the written word. When bookstores host authors and serious talk shows interview us about what we’ve found, the ideas get put into the public forum in ways that cannot be readily matched in 24-hour news cycles. But there are fewer bookstores and fewer serious talk shows.

I like listening to people, hearing their stories, and struggling with their questions. In a San Francisco bookstore, a doctor approached to talk a little about her grandfather, John Punnett Peters, who was labeled as disloyal during the McCarthy period and dismissed from a position in the National Institutes of Health. Later, she said, it was learned that medical colleagues had reported him because he advocated government funding of hospitals, medical research, and other aspects of health care, which must have made him a subversive socialist in the eyes of the medical and political establishment.

In Seattle, an activist explained patiently and at length how he had defied U.S. sanctions against Iraq in the late 90s to transport goods to children there. He had asked the U.S. Attorney to prosecute him so that he could contest the sanctions in court. No prosecution was forthcoming, but he was ultimately fined $10,000, an amount that has risen to $16,000 with unpaid interest and penalties. He wants to go to court to argue that what the United States did in those years of sanctions, which punished innocent civilians with the aim of ousting Saddam Hussein, amounted to terrorism. He tried to get me to agree, but I’m not a big fan of putting labels on things. I’d rather describe them, not characterize them. Name-calling has a way of shutting down discussion.

The hardest question I’ve had so far has been: How do we get out of this period of our history—the sixth by my count—in which we’ve deviated from our constitutional principles in the name of national security? I’m not sure. The fear has to abate, and that may gradually come if terrorist attacks ultimate wane. The courts have to lead in restoring rights by striking down the surveillance laws and practices that violate the Fourth Amendment. The Congress has to gird itself to undo the legislative damage inflicted after 9/11. The president—some president—has to lead us into a clear-eyed appraisal of our interests and needs, and remind us that the word “secure” appears in the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects . . . shall not be violated.” Security and liberty do not make a zero sum game.

But when I remind audiences how self-correcting our system has been in the past, I meet some skepticism about the future. Alongside Americans’ complacency about the erosion of certain of their rights, some of their countrymen harbor a deep concern. Maybe they should start telling their Representatives and Senators.

Pragmatic Torture

2011-05-06T15:27:00.004-04:00

By David K. Shipler
(Published on The New Yorker's News Desk, online, May 5, 2011)

Advocates of torture who enjoy tormenting the rest of us with the hypothetical ticking-bomb scenario might be tested with the counter-hypothetical proposed by Michael Sandel, a political philosopher at Harvard. In his 2009 book, “Justice,” Sandel writes,

“Suppose the only way to induce the terrorist suspect to talk is to torture his young daughter (who has no knowledge of her father’s nefarious activities). Would it be morally permissible to do so?”

It would be interesting to hear the answer from those who are hauling the country back into the repugnant debate over whether torture “works.”
Because such utilitarianism is the only aspect of torture that they are willing to consider, the discussion—such as it is—has turned on what slender strands of evidence about Osama bin Laden’s courier were produced by “enhanced interrogation.”

This may never be known definitively without the declassification of documents, sworn testimony by participants, and an investigation by something equivalent to the committee Senator Frank Church of Idaho chaired in 1975 and 1976. The Church Committee compiled a thorough record of illegal domestic spying and dirty tricks against anti-war and civil-rights activists, among others, leading to the passage of an array of privacy laws, most of which were weakened, twenty-five years later, by the Patriot Act. (I’ve written a book about the give-and-take over safety and liberty, “The Rights of the People.”) But neither Congress nor President Obama is inclined to impanel such a commission. Instead, since bin Laden’s death, Americans have been left to listen as Dick Cheney and others have tried to rub the tarnish of torture off their own reputations. Cheney suggested that “it wouldn’t be surprising if in fact that program produced results that ultimately contributed to the success of this venture.” Peter King, the Republican chairman of the House Committee on Homeland Security, said flatly that waterboarding Khalid Sheikh Mohammed had dislodged information on the courier.

That this appears to be a caricature of the truth is beside the point. It is a renewed attempt to revive the Bush Administration’s reign of pragmatism over morality. The two need to be separated, as ends and means are divided in assessing personal behavior.

First, the pragmatic argument is far from settled—it’s not clear that torture works. Professional interrogators came forward under Bush to denounce torture as unproductive, even self-defeating, for it can induce phony confessions and misleading statements, sending investigators or counterterrorist teams on fruitless diversions. We have seen this in the criminal-justice system, where the Fifth Amendment’s guarantee against coercive interrogation, if observed, helps guard against erroneous prosecutions. False confessions figured in about twenty per cent of the two hundred sixty-six convictions that have been reversed based on DNA evidence, according to the Innocence Project’s count. And that’s just in the cases where DNA evidence is available—a small minority.

Second, morality ought to be a comfortable pedestal for torture opponents. But there is something coarse and brutish about the public forum in America these days that undermines the moral footing and pulls those objecting to the abuse of prisoners down to low arguments about whether it works. They can hold their own in that fight, because there is a convenient alternative to torture: humane treatment. “One has to ‘go to school’ on each captive,” Colonel Stuart Herrington, a retired army intelligence officer who advised teams at Guantánamo, wrote in the Pittsburgh Post-Gazette at the height of the debate, in 2007. He and his teams “collected mountains of excellent, verified information” in Vietnam, Panama, and the first Gulf War, he said, by learning the prisoner’s beliefs and fears, his hatreds and his loyalties, his family details and his “core vulnerability.”

But what if torture were the only way? Then the moral question would have to be engaged—and in a healthier debate. It would have to be about the terror suspect’s little daughter.

It would also be about us. Vladimir Bukovsky, the human-rights campaigner and veteran of Soviet prisons and psychiatric hospitals, warned Americans in 2005 about Russian torturers who descended into alcohol, drugs, criminal violence, or domestic abuse. He wrote in the Washington Post: “How can you force your officers and your young people in the C.I.A. to commit acts that will scar them forever? For scarred they will be, take my word for it.”

The notion that the United States can be hermetically sealed from its abuse of prisoners abroad is fanciful, as illustrated by investigations into torture committed by Chicago police from the early nineteen-seventies into the nineties. One method, hooking wires from a hand-cranked generator to various parts of suspects’ bodies, was nicknamed the “Vietnam special” or the “Vietnamese treatment.” In Vietnam, where an Army field phone had been used on prisoners, it had been called the “Bell Telephone hour.” The Chicago unit’s commander, Jon Burge, had served in Vietnam in a military-police company. He was convicted last year of perjury in connection with the torture in Chicago. We can only hope that the interrogators who have tortured terrorist suspects since 9/11 do not, or have not, become police officers.

Obama's Race

2011-04-29T19:15:00.001-04:00

By David K. Shipler

Americans who are honest with themselves can perform a mental exercise to test the proposition that Barack Obama is a victim of racial prejudice. Change his race to white and, for good measure, change his Kenyan father to a Swede. Name him Olander. Then listen closely to what is being said about Obama, apply it to Olander and hear how it sounds. Is it off key? Does it have resonance? Would 41 percent of Republicans believe that a president with a Swedish father and a white mother from Kansas was born in another country?

Arab-Americans have been doing a variation of this for years to make the point that if “Jews” are substituted for “Muslims” or “Arabs” in cartoons or epithets, the result in polite company would be a gasp of horror.
Once revealed and called by its right name, a stereotype can be addressed, and that may be the perverse benefit of Obama’s need to get a waiver from Hawaii to obtain his original birth certificate. The word “race” has finally entered the vocabulary of a few commentators and editorial boards. The candor may be curative.

It is more common in modern America for the stereotype to remain encrypted and wrapped in layers of denial, where it festers. When it appears, it is camouflaged to look legitimate, a shape-shifter mutating into various accepted forms. Did he actually deserve admission into Columbia and Harvard? Is he a Muslim? Does he harbor an alien ideology, like socialism? Is he really one of us? Where is he truly from?

Race is the insidious component of these comments, unmentioned because it doesn’t have to be. It silently animates the questioning and flows invisibly into the imagery like an undercurrent of code. Yet interactions across racial lines are usually ambiguous. They may be about race, but not only race. They may be malicious or just innocently ignorant. Many African-Americans who know this spend energy asking themselves again and again: Is a criticism or a slight rooted in some hidden core of bigotry, or is it just a raceless, equal-opportunity affront?

The uncertainty leaves room to dismiss accusations of racism out of hand, without serious inquiry. All you have to do is to imagine that it isn’t there. This is the tactic used by Rush Limbaugh and other right-wingers, who conduct preemptive strikes against discussion. The left, they complain, tries to discredit all legitimate criticism of Obama by branding it as racism. So, how do you cut through this fog of war? Where does the President’s race play in all this?

There is a key to the code. It is written in the raw stereotypes of blacks that have flourished throughout modern American history. Lay the images and beliefs out on the table one by one and see whether the questions and caricatures of Obama fit the longstanding patterns.

Take the collection of fantasies portraying Obama as alien: He was born abroad. He is a Muslim (forgetting the ravings of his Protestant pastor, Jeremiah Wright). He supports such un-American ideas as socialism. Little is truly known about him, less than any other president, Limbaugh has declared (forgetting Obama’s two introspective memoirs and his transparent biography). The campaign to render him mysterious, different, and inscrutable is designed to make him alien to us.

Blacks in America have long been stigmatized as “different,” apart from the mainstream. Sociologists have tested whites’ prejudices in studies using a “social distance scale,” in which respondents are asked to record the level of their discomfort in having a black as a co-worker, then a neighbor, then an in-law. As the distance is reduced, the resistance rises.

In my research for A Country of Strangers: Blacks and Whites in America, some whites explained how they perceive distance between them and an African-American, often from the first moment of encounter: a sense of apartness determined by the darkness of the skin, the flatness of the nose, the thickness of the lips, the style of the hair, the clothing, the accent. Some whites conceded that they were less comfortable with a black American who wore African clothes or cornrows than a business suit or straightened hair.

Many African-Americans know this, too, so to get along in the white working world, they straighten their hair, wear business suits, and shed their ghetto dialect at the office door. In other words, they “act white.” A California professor even told me that as she drove onto campus, she switched her car radio from R&B to classical.

Obama has none of the “ghetto” or “African” characteristics except for skin color, and of course he is just as “white” as he is “black,” since his mother was white. His speech is erudite and middle-American. His kinky hair is cropped so closely that it nearly disappears. He talks less about race than Bill Clinton and Lyndon Johnson did. So to emphasize Obama’s “otherness,” the right-wing movement of absurdists has questioned his place of birth, his religion, his commitment to red-white-and-blue capitalism, and his true agenda.

Because he is biracial and lived part of his childhood in Indonesia, because he worked as a community organizer in Chicago and his world is the multiethnic real world, he seems to create anxiety among some who want to live in the monochromatic world. He represents much of what makes them nervous about the country, bringing that tumultuous, diverse real world into the sanctuary that once felt safe and predictable. At some level, his extremist detractors may be afraid of the new America that he personifies.

Another set of slanders fits into another potent stereotype of blacks—supposed lack of intelligence. It’s hard to use this label on Obama, who exudes brilliance. But being smart in a powerful position may also be an irritant for whites who feel more comfortable with the caricature of the deferent, shuffling, inarticulate, and slow-witted. Therefore, when black people excel, they are sometimes derided as the products of unfair advantage bestowed by affirmative action. Into that pattern slides the latest canard, repeated by Donald Trump after he took credit for getting Obama to release his birth certificate: the innuendo that Obama did not deserve to be admitted to Ivy League schools.

“The word is, according to what I’ve read, that he was a terrible student when he went to Occidental,” Trump told reporters, referring to Occidental College, which Obama attended before transferring. “He then gets to Columbia, he then gets to Harvard. I heard at Columbia he wasn’t a very good student. He then gets to Harvard. How do you get into Harvard if you’re not a good student? Now maybe that’s right or maybe it’s wrong, but I don’t know why he doesn’t release his records. Why doesn’t he release his Occidental records? . . . It’s an interesting thing.”

Trump added a little dig that, he may not have realized, also called up an old racial stereotype: He said that Obama should get “off his basketball court” and get oil prices reduced. Blacks have long been stigmatized as possessing physical prowess at the expense of mental acuity—good athletes, bad thinkers. Was Trump being inadvertent or cunning?

It is a sorry fact of the American legacy that identical criticisms of whites and blacks mean very different things. History will not leave us alone. George W. Bush was incessantly heckled from the left for his supposed stupidity. A bumper sticker denouncing his warrantless surveillance program read: BUSH IS LISTENING. USE BIG WORDS. Since Bush is not black, no longstanding stereotype was summoned; if the same bumper sticker ridiculed Obama, it would strike an ugly chord of historic bigotry.

Similarly, portrayals of white and black presidents as primates generate very different reactions. In 2004, when an artist named Christopher Savido displayed a portrait he’d done of Bush composed of tiny images of chimpanzees, the exhibition was closed by a director of the Chelsea Market in Manhattan outraged by the rude politics of the piece. There was no racial context, obviously.

But when a picture of Obama as a baby chimp was circulated in 2011 it had another implication, given the longstanding caricature of blacks as subhuman primates. Marilyn Davenport, a Republican Central Committee member in Orange County, California, e-mailed a doctored photo showing Obama’s face on a baby chimp alongside two chimpanzee parents, with the caption, “Now you know why—No birth certificate.”

At least part of the Republican establishment was embarrassed enough that she apologized defensively. “I feel that it was inappropriate and I offended people,” she admitted, but then added: “I think it’s only racist when the intent in my heart is to make it that way, and that was not the intent in my heart.”

Perhaps, to give her the benefit of the doubt, she had no intent in her conscious mind. But when it comes to racial stereotypes buried deeply within the American experience, the heart often beats in age-old rhythms.

The Trickle-Up Theory

2011-04-16T15:39:00.003-04:00

By David K. Shipler

Way back in the Dark Ages of 2008, when the stock market tumbled into freefall and the financial system congealed like a solidly frozen daiquiri, I had a theory. It turned out to be completely wrong—well, not completely, but correct only in a way I didn’t imagine.

I figured that the hardships of poverty, now spilling up into the middle class, would inspire the collective American passion for solving problems.
I thought that the politically-engaged keepers of the American Dream, experiencing for themselves the ravages of joblessness, homelessness, and helplessness that had long paralyzed the poor, would mobilize their country’s engines of repair. I guessed that as the poor began to look more like the rest of us—or we like them—the old habit of blaming the victims would yield to a new recognition that the ingredients of suffering were a bit more complicated.

The eligibility requirements for becoming poor were never quite what they seemed. You didn’t have to drop out of school, do drugs, or have a baby out of wedlock. You didn’t have to be black or Hispanic. All those ingredients increased your risks, but they weren’t prerequisites.

In fact, looking below the poverty line, you see a pretty diverse population. Non-Hispanic whites are the largest group, although their poverty rate of 7 percent is considerably lower than the 24 percent for both blacks and Hispanics. In the ranks of the poor there are almost as many high school graduates as dropouts—nearly 10 million compared with nearly 11 million—and almost 7 million who’ve been to college but lack a degree. If your family is poor and you have children out of wedlock, you’ve got a ticket into continuing poverty, but you’re not alone: Just over 50 percent of poor households are headed by single women, but most of the rest are married couples, whose poverty rate rises as the economy declines.

So the stereotypes should have peeled away as the Great Recession caught the middle class in some of the same dynamics that impoverished families have long endured. People who were once comfortable (and who vote at much higher rates than the poor) might have come to identify with those occupying the margins and the depths. No matter whether they’re chronically poor or newly poor, households with no cushion are vulnerable to the syndrome of interlocking ills, where one problem triggers and magnifies another and another like an ecological system gone awry.

Housing is a key link in this chain reaction. Its harmful conditions contribute demonstrably to health problems, psychological stress, and even child malnutrition. The savviest doctors know this and try to influence patients’ living environments, but after years of futile efforts in treating children with asthma, for example, the pediatric department at the Boston Medical Center enlisted lawyers to help doctors. Mold, dust mites, roaches, and other antigens at home exacerbate the disease, which can jeopardize a struggling family. Repeated asthma attacks mean that a child loses days at school, and a parent may lose a job for missing days at work. Emergency-room visits cost the medical system dearly. Pediatricians and nurses who take the trouble to contact a landlord are usually frustrated, and have marveled at how swiftly problems are solved when the call comes from an attorney.

Therefore, the idea of bringing lawyers into medical care has caught on, spreading across the country through the Medical-Legal Partnership Network, now counting some 235 clinics and hospitals that use attorneys either on staff or pro bono, for a range of tasks—not only to improve housing but also to get eligible people food stamps, child care, and other benefits wrongly denied.

There is no mystery about the interacting problems. We know that food shortages in impoverished households are worsened when no housing subsidies are available. We know that working poor families paying market rents in many parts of the country may have to spend 50 to 70 percent of their incomes on their apartments if they’re not in public housing or other government programs. Writing the rent check every month is not optional. You have no choice. You have to pay the bills for rent, electricity, water, gas, phone. The squeezable budget item is the part for food. Consequently, among low-income families, a high correlation has been observed between a lack of housing subsidies and underweight children.

This handicaps the country’s future, for malnutrition during a child’s early years, when brain development is at its most critical phase, can leave lifelong cognitive impairment. Learning capacity is diminished, school performance suffers, and therefore life opportunities are constricted. We know this, but do members of Congress?

Housing is relatively easy to improve; it just costs money. But it’s money we’re not willing to spend, and the Great Recession didn’t wake us up. Thanks to Republicans’ unwillingness to harness the nation’s financial power where it would count, and thanks to Democrats’ lack of spine in standing firm on sensible priorities, government housing programs “will be contained, controlled, and cut back,” according to a budget analysis by the Citizens Housing & Planning Council in New York. Funds for housing in the stimulus act will end, community development block grants are on the chopping block, and public housing operating and capital grants will be reduced just when significant increases are needed.

Cuts in other programs as well, including nutrition, job training, and education, are likely to weaken the American economy in the long run. It’s an odd policy for a country that touts its economic prowess. It’s as if nobody had come up for air and looked around at the acute competition in a ruthless global economy—not a welcoming place for an underskilled workforce.

And that’s what the United States has: an underskilled workforce. We can see this in the chilling data from our own studies, notably the Department of Education’s National Assessment of Adult Literacy, which tests a large sample every decade, most recently in 2003. Then, about 55 percent of adults could not total the cost of office supplies ordered from a catalogue, or read a prescription label and understand when to take the medicine in relation to meals. Some 43 percent couldn’t read a want ad and summarize the experience required for the job, 34 percent couldn’t follow directions on a map, and 22 percent couldn’t take an hourly wage and figure weekly earnings.

So I was wrong. I thought as the hardships trickled up from the poor into the middle class, so would the will to address them. I figured that if altruism weren’t enough, self-interest would spark a spirit of shared sacrifice motivating Americans to focus their government’s power to fill gaps in the private economy. Instead, the only people who gained from the trickle-up theory were the recipients of government bailouts at the very top of the financial hierarchy, which housed those who got us into the mess in the first place.

Military Commissions: A Dangerous Precedent

2011-04-11T19:06:00.001-04:00

By David K. Shipler

(Published in the Los Angeles Times Apr. 10, 2011)

The system of military commissions that will try Khalid Shaikh Mohammed and four other alleged 9/11 plotters contains a dirty little secret. Hardly anybody talks about it, but it's a key reason for concern as the apparatus becomes established.

It is this: The commissions can operate inside the United States, and they have jurisdiction over a broad range of crimes. Nothing in the Military Commissions Act limits the military trials to Guantanamo detainees, or to people captured and held abroad, or even to terrorism suspects. Nothing prevents the commissions from trying noncitizens, arrested inside the country, whom the president unilaterally designates as "unprivileged enemy belligerents." In other words, the law permits military officers to try non-Americans from Alabama and Arkansas as well as Afghanistan.

The Obama administration's decision last week to shift the high-profile 9/11 case from federal court is bound to move the military system toward legitimacy. The commissions lack the seasoned body of precedent that guides civilian courts, so their procedures will have to survive litigation by defense lawyers. But once the commissions gain stature and become the "new normal," every future administration will have a ready instrument to arrest, judge and sentence wholly within the executive branch, evading the separation of powers carefully calibrated in the Constitution. The judicial branch has no role except on appeal, where only the federal court for the D.C. circuit may review a verdict and sentence after the trial.

It seems far-fetched to imagine tribunals in San Francisco as well as Guantanamo, yet the law allows the spread of such a system, impeded only by officials' restraint. Atty. Gen. Eric H. Holder Jr. pledged Monday to restrict the use of commissions, but one official's good intentions cannot shield civil liberties from government intrusion. Restraint usually dies during spasms of fear over national security.

The framers saw that rights depend on structural bulwarks, not on particular officeholders. "All men having power ought to be distrusted to a certain degree," James Madison declared at the Constitutional Convention as he noted "the political depravity of men and the necessity of checking one vice and interest by opposing to them another vice and interest." The checks are being eroded here.

Because terrorism has fostered a concept of war as boundless and timeless, many crimes normally tried in civilian courts can be brought under the shifting rubric of war, granting military commissions broad jurisdiction. Provided the offense is committed in the context of "hostilities," defined as "any conflict subject to the laws of war," commissions may try a noncitizen on charges that include spying, seizing property for private use, taking hostages, rape, sexual assault, hijacking, mistreating a dead body or improperly using a truce flag or distinctive emblem, as well as murder, torture or material support for terrorism.

A trial has a truth-finding mission. Its accuracy is determined by a panoply of rights: to effective counsel, to summon and confront witnesses, to exculpatory evidence. These rights are weaker before military commissions than in courts-martial or criminal courts; although enhanced by 2009 amendments to the 2006 Military Commissions Act, they still allow certain hearsay and statements coerced during combat or capture. So the military commissions' findings may be less reliable.

But the truth may already be known in the 9/11 case. The accused are reportedly ready to confirm their roles in the attacks, not in a spirit of guilt but of pride. Their trial will be a pageant and a precedent, a rendering of the expected judgment and sentence — and then a legal legacy.

It is the symbolism, not the legal impact, that has been most vigorously debated. Yet it's the legal damage that is likely to remain long after the five are tried. Symbolically, a strange symmetry unites both the defendants and those in Congress who see a military trial reflecting the 9/11 attack as an act of war, larger than a common crime. Supporters of a civilian trial did not favor a different outcome but rather a different message — the display of a crown jewel in our constitutional democracy: the criminal justice system with its full array of individual rights.

Long after the verdicts and sentences, the plotters will continue to wound the country, now with American cooperation. If ultimately upheld by the Supreme Court, the elements of the military commissions will pass into the precedent of case law, creating a permanent apparatus, parallel to the criminal justice system, to prosecute and try foreign civilians. It could become a lasting injury of Sept. 11.

Violating Rights: Out of Sight, Out of Mind

2011-03-31T16:35:00.014-04:00

By David K. Shipler

During research for my book The Rights of the People, I asked a communications class at Stetson University to write their answers to a few questions, including whether “you expect that your e-mails, phone calls, letters, checking accounts, conversations in your rooms, credit card use, computer hard drive, personal items in your home, etc. will be, or should be, beyond the reach of government investigators without judicial authorization.”

The question has important legal implications, because the Supreme Court has ruled that unless someone has “an expectation of privacy,” the Fourth Amendment usually does not apply. Only where such expectation exists (as defined in various court opinions) does the government have to get a warrant based on probable cause to believe that particular evidence of a crime will be discovered in a certain place.

Most of the students were adamant about their privacy, others were reluctantly resigned to losing it, and a few endorsed the surveillance for the sake of security. But one response jumped out at me, from a young woman who wrote:

“Do I want the government breaking down my doors to interrogate me? Of course not. Something in the middle, however, is not outrageous for our protection. I wouldn’t mind if they peeked into my life as long as I don’t notice them there.”

She captured perfectly the warring attitudes coexisting in the United States, especially since 9/11. Violations of the Bill of Rights are considered outrageous when they are obvious and physical, but when they are out of sight, they are out of mind. That leaves government with latitude to do invisible electronic searches without generating much public opposition. It may also contribute to a declining “expectation of privacy” and thereby erode Fourth Amendment protections in the courts.

The problem is one of perception, as illustrated neatly by Publishers Weekly, which called electronic surveillance “less intrusive” than the pedestrian frisks by policemen looking for guns. Those visible pat-downs were “shocking,” it said in a brief review of The Rights of the People. But if investigators without showing probable cause can wire your bedroom for sound, copy your daughter’s hard drive, tape your phone conversations, read your e-mail, monitor your Web browsing, collect a decade of your travel and medical and financial records, and follow your location through your cell phone or a GPS device planted secretly on your car, how is that “less intrusive?”

Most of those steps were taken against the innocent lawyer Brandon Mayfield, who came under secret surveillance in Oregon after the FBI lab misidentified a fingerprint from the 2004 Madrid train bombing as belonging to him. Courtesy of the Patriot Act’s amendments to the Foreign Intelligence Surveillance Act, FBI agents entered his house and law office surreptitiously. His phones were tapped; his intimate and professional conversations at home and work were monitored with hidden microphones; and his private papers and his clients’ privileged files were copied. Agents also copied three computer hard drives and one external drive, took ten DNA samples on cotton swabs, collected six cigarette butts to compare the DNA with that found in a van used by the terrorists, and took 335 digital photographs of his house and office. So much for the argument that you have nothing to fear if you’ve done nothing wrong.

I’ll bet, if offered a choice between all that and a one-time frisk, Mayfield would have picked the pat-down.

We face a serious risk of complacency. I won’t be surprised to see it expressed in reaction to my new book, from Americans who mock other Americans’ warnings about the erosion of certain civil liberties. Questions on the topic do not get asked during political campaigns, not even by reporters interviewing candidates or moderating their debates. Polls show a lack of concern. The Tea Party movement, so vividly anti-big government, has displayed only marginal interest in government’s invasions of the Fourth Amendment. Twenty-six Republican House members did vote in February against renewing several expiring provisions of the Patriot Act; otherwise, conservatives have been inconsistent, opposing big government’s social programs but not its surveillance programs.

The trouble is, if that Stetson student's view prevails, if we cannot mobilize sufficient concern about what we cannot see, then the invisible surveillance will continue undermining the Fourth Amendment without the resistance that is always required to preserve individual rights.

Wars of Choice

2011-03-24T17:51:00.002-04:00

By David K. Shipler

The air strikes on Libya and the hand-wringing in the United States illustrate a cold fact about waging war these days: We are fair-weather fans. If we win, the warfare is a good idea; if we don’t, it isn’t. Only after Col. Muammar Qaddafi’s fate is determined will our attack be solemnly judged to have been brilliant or foolhardy, a stroke of heroic selflessness or fumbling incompetence.

This makes us sound cynical, but it may be the natural pragmatism of an American public grown wary of being sucked into swampy combat in complex places. Where national survival isn’t at stake, early enthusiasm invariably wanes as conflicts drag on. Vietnam, Afghanistan, and Iraq all had majority support at the outset. Vietnam’s eroded with the mounting American casualties and the endless failure to win. Afghanistan’s and Iraq’s declined as the quick victories over the governments of the Taliban and Saddam Hussein, respectively, faded into elusive victories at the grassroots.

No ground troops are slated for Libya, which indicates how vital to our interests we think it is. If Qaddafi retains power, it’s a safe bet that the 47 to 70 percent polled as endorsing the no-fly zone in its initial days will plunge. Some enterprising researcher should graph how closely the political commentary tracks the rise and fall of the rebels’ fortunes. A line charting the pronounced wisdom of doing air strikes would surely climb with the rebels’ advances and decline with their retreats.

At the outset, popular support comes rather easily for antiseptic, high-tech warfare that costs only American dollars (about $1.4 million per Tomahawk cruise missile) and not American lives. War by remote control can become cavalier. But imagine the surge of disapproval if those two American pilots who crashed had been captured instead of rescued.

When casualties are introduced, even just written into survey questions as hypotheticals, public endorsement declines. That was documented by an ABC News poll during the NATO bombardment to halt Serbia’s 1999 assault in Kosovo, aimed at curbing the slaughter of ethnic Albanians. Asked whether they would favor sending ground troops if the air strikes weren’t enough, 57 percent of Americans surveyed said yes. And “if there was a good chance that some U.S. soldiers would be killed in the fighting?” The support fell to 44 percent. If “up to 100 U.S. soldiers” were killed? Approval dropped to 37 percent. With “up to 500” killed it went down to 31 percent, and at 1,000 deaths to 26 percent.

Is this unreasonable? Not in a war of choice, and that’s what our wars since 1945 have mostly been, even if they haven’t looked that way at the time. The Korean War may be the singular exception. It can still be justified as a war of necessity, given North Korea’s conquest of all but an enclave in the South before it was driven back and nearly overrun by American-led U.N. troops until China came to its rescue. The end result—the same partition as before the war—is not regarded in the United States as a loss.

Nor would the same outcome—continued partition—have been considered a loss in Vietnam, where the United States was propelled by the firm (erroneous) conviction that a monolithic global communist movement would roll past South Vietnam into all of Southeast Asia and beyond. That domino theory baffled veteran North Vietnamese officials, and they said so in 1997 during an unprecedented conference convened in Hanoi to review the missed opportunities for peace. Again and again, the Vietnamese insistently explained to former Defense Secretary Robert McNamara and other Americans that the war’s goal had been independence, not the spread of communism. From Hanoi’s viewpoint, the struggle continued centuries of resistance to colonialism from China, France, and finally the United States.

It is an axiom of war that the final results cannot be known until many years after the fighting has ended. A triumphal Israel emerged from the Six-Day War in 1967, a powerful David against the Arab Goliath, but 44 years later, remains shackled to a burgeoning, hostile Palestinian population in the territories it captured and a grinding war of terrorism and reprisal. In 1973 Israel nearly succumbed, yet Egypt’s near victory helped give President Anwar Sadat the stature to make peace. Invading Lebanon in 1982, Israel secured its north by expelling the Palestine Liberation Organization. But it was a war of choice, and while the Israeli army showed its prowess in conventional military terms, it also proved vulnerable to close-in attacks by individual guerrillas. Israeli public support eroded, the country ultimately appeared irresolute, and its long-planned withdrawal was misinterpreted as a retreat and a capitulation, which emboldened its adversaries.

Afghanistan may have begun as a war of necessity to uproot al-Qaeda after 9/11, but it has morphed into a war of choice. Iraq was a war of choice from the beginning. We have had no ultimate victory in either place, so we cannot judge those wars worthwhile. We do not yet know their long effects, however. The history books are still open.

The Train to Hiroshima

2011-03-17T16:36:00.003-04:00

By David K. Shipler

Hiroshima is a long, safe distance from the damaged nuclear reactors in northern Japan, but it is close to the surface of my thoughts. That the only country attacked by nuclear weapons should now, 66 years later, face a threat from the peaceful use of nuclear power puts a particular edge on the injustice. I wish I could be in Hiroshima to hear how this tragedy of 2011 is playing in the minds of those who lived through 1945. Schoolchildren will soon find out, if they ask the right questions.

As spring comes, many schools in Japan organize trips to the city so that children can listen to aging survivors tell their stories. The bullet train from Tokyo was full of kids the day I went in May 2007.
They wore neat blue and white uniforms, and the train rang with the tinny clamor of little voices. We’ve all made these eager sounds of excitement on a day out of class, the universal music of any field trip in any country. Yet here it seemed dissonant. They were heading to a mournful place. Shouldn’t there be a somber note?

Then I corrected my thought: They should be just as they are, held in their present and laughing into their future.

The museum at the Peace Memorial is built on facts, not blame. It is not anti-American but anti-war. The pieces of history displayed in documents are like hammer blows. The artifacts need no explanation: a metal lunch box, its lid open to reveal the ashes and coals of a child’s lunch that had been burned to a crisp inside; fragments of clothing, much like the bits of prison uniforms from concentration camps that you can see at Yad Vashem, the Holocaust memorial in Jerusalem; a wrist watch stopped at the precise time of impact; pictures of faces, of bodies burned and twisted. A panorama photograph of the leveled city runs for about 45 feet along one wall, a vast ruin. In a hallway hang children’s drawings, the simple unvarnished memories of the aftermath: a naïve rendition of a stiff corpse crosswise on a bike, bodies lined in rows.

Suddenly into the midst of my own somber gaze back into the shame came four giggling schoolgirls intent on practicing their English. “Hello!” “How are you?” “What is your name?” The stock phrases seemed about the limit, but we had a little exchange, their eyes shining with delight. When I asked them how old they were, a couple said thirteen, one fourteen. Then they bounced away, only to circle back again to try out the same phrases. Their joy was like a breeze.

Hiroshi Hara was waiting for me at a table in the museum snack bar. In all such catastrophic moments, the wheel of chance stops in favor of one, against another. He had been favored. Behind big glasses, his eyes were cheerful. His long gray hair, grown back after a bout of chemotherapy, stuck out underneath a black beret. He was now 75. When the bomb was dropped, he was 13.

Thanks to Tomoko Nakamura, a professor of English who generously translated, Mr. Hara’s story came to me with graceful fluency. He had told it many times. He lived on the outskirts of Hiroshima and had to travel into the center of the city to his middle school. The day before the bombing, a Sunday, he and others in his class had been set to work demolishing wooden houses to make firebreaks. This was a widespread task—an attempt, in case of a bombing, to stop the entire city from going up in flames. Since the kids worked Sunday, their teacher gave them Monday off from classes—Monday, Aug. 6. His school was only 700 meters from ground zero.

Instead of going home after the Sunday chores, he went to his aunt’s house on Etajima Island, which was two kilometers from his school. She had a farm, and he hoped to get food, for the city’s population had little to eat.

The next morning, while he carried his cousin on his shoulders on the way to the beach, a “blue flash” exploded across the water. A huge cloud shaped like a mushroom erupted and grew bigger and bigger. He wanted to go home, but his aunt persuaded him to stay until word came the following day that all children should return to their schools. He took a boat, then walked through town. “It was so cruel. I don’t know any words to express it. I found a body without a head. There was a body with organs coming out. A dead body [burned], looked like a tree lying on the ground. I started to look down on the ground, there were so many dead bodies I tried not to bump them.”

His school was gone. His teacher told the children to go home, although many had no homes to go to. His house, far enough from the blast, had survived with nothing more than broken windows, and his family was alive. His mother and younger siblings, who had been at home, were unharmed. His father, who worked for the railroad at the port, closer to the center, was peppered with shards of flying glass; Mr. Hara remembered his head covered with bandages. He died of cancer at age 52.

Since the early 1980s, Mr. Hara had met with some 80 school classes a year, adding up to about 100,000 kids, he figured. He had also done nearly 2,000 drawings of the city hall, left standing with its dome in partial destruction as a memorial, a reminder. He presented me with number 1,920 and was aiming to reach 2,000 by that Aug. 6. (Three years later, on Aug. 6, 2010, he painted number 2795, his wife told Prof. Nakamura today, and plans to resume work as the weather warms this spring.)

The giggling girls with the shining eyes and the few perfect English phrases were among the 50 or so sitting quietly in rows as Mr. Hara walked in and was introduced by one of the boys. The kids sat erect, then bowed in unison. And Mr. Hara told his story once again.

He made the noises of the plane and the bomb; he squinted his eyes and twisted his face as he described burned faces and bodies, so charred you couldn’t tell whether they were male or female. After the blast, “The fire became bigger and bigger toward the end of the day, and even in the evening it was not dark because of the fire. … On the bridge there were so many people lying down—they were dead. In the river I saw many people floating.”

The children sat motionless and silent, held by the memories of the boy who had been their age. Three of his teachers died. One’s eyeballs had been blown out of his head. Some of his schoolmates were so completely burned they couldn’t be recognized. Of his five best friends, “I’m the only person who survived. I regretted that I was the only person who survived. I tried not to talk about my experience. Later I realized I should speak aloud in place of my dead classmates.”

Without explanation, his teacher told him that as he walked home he should ignore people’s pleas for water, for if he gave them water they would die. And so he remembered now the cries for water, the soldiers entering the city to collect and burn the bodies, the sickening smell of cremation that turned his stomach despite his hunger and made him unable to eat rice balls that women were making and handing to passersby. “I heard many people crying out, ‘Give me water.’ I could have given them water, but I thought of my teacher’s advice. I was shocked that I couldn’t do anything to rescue people. But the image still remains in my mind. The bodies looked like burned wood on the ground.”

The children remained still, quiet. The somberness I had craved on the train had descended on them all. He told them: “You cannot hear people crying out, ‘Give me water’ in the museum, and you cannot smell the cremation. So in the museum you cannot see what happened in Hiroshima.”

Mr. Hara recited facts about nuclear weapons, including the countries that possessed them, and urged the kids to take notes. They hunched obediently over notebooks. He told them some basic history including Japan’s attack on Pearl Harbor, the American calculations, and a bit of his own speculation: “The United States tried to use the atomic bomb to finish the war as soon as possible, they say, but it seemed a sort of experiment. The United States wanted to get the results of the atomic bomb. That is why we cannot permit the American government to be the policeman of the world. … When I talked about this in the United States, some of the audience told me to go out of the place.” It had been in Washington state, he said later.

For a solid hour, the children had sat rigidly attentive. He presented one of his drawings to their school in Okayama, not far from Hiroshima. “Human beings cannot live together with nuclear weapons,” he concluded. “That is something I should hand down to the next generation. That is why I keep drawing pictures of the dome. I sometimes show the pictures to mothers. I will give you a baton of peace. Please accept it, and after, find someone to give it to. I don’t have so much time left. I would like you to remember what I said after you go back to school.”

Now a girl went to the front of the room to invite questions. A boy asked when Hiroshima residents began reconstruction. Soon after the bombing, people began growing vegetables near the dome, he replied, and within four years building was proceeding apace. A teacher asked about food in the aftermath, and Mr. Hara said his family shared a single rice bowl and ate any edible things. With nothing in the stores, money was useless. A boy asked how long it was before he felt like eating. Once he was home, he ate.

And then another boy asked a very grown-up question: When he had a hard time, what idea helped him? Mr. Hara said that he had been helped by telling what had happened. He sent a letter to a newspaper. He wrote a poem. He drew pictures. “So I have a mission to keep talking about my experiences.”

Then the session took an odd, funny turn. Mr. Hara introduced me, this gray-bearded American sitting in the back of the room, and the interpreter explained a bit about me. When she mentioned that I had been on the TV show “Close-Up” talking the night before about poverty, a girl in the front row jumped up and shouted that she’d seen me, and gave me a double thumbs up. She later told me that I had inspired her. My friends the giggling English-speakers shone with delight again, and I said a few words in support of Mr. Hara’s mission to keep the history alive. Then I asked if some of them could tell me what they were feeling during his talk.

I handed the microphone to one of my friends, whose eyes had been so cheerful when we met in the museum. She hesitated, looked at the floor, and then mumbled, “It was a terrible thing.”

A boy said, “I had learned something before I came to Hiroshima, but after hearing from someone who actually experienced it, it was more terrible than I had expected.”

A girl declared: “We have to keep saying we don’t need any nuclear weapons.”

When the session broke up, kids started smiling again and laughingly crowded around me holding out their notebooks for autographs as if I were some rock star. Here, at least, I had not inherited the sins of my fathers.

Muslims Exposed: Unprotected From Bigotry

2011-03-11T17:48:00.002-05:00

By David K. Shipler

Buried among the many dumb things that Ron Schiller of National Public Radio said on his secretly taped YouTube debut was one noble, principled statement that was right on target but has received little attention. It was a lucid denunciation of bigotry—anti-Muslim stereotyping in this case—and an affirmation of journalistic ethics that require reporters to leave their personal opinions out of their professional work.

Schiller, NPR’s chief fundraiser at the time, was talking about Juan Williams, whom NPR fired as an analyst last fall after he said that people in “Muslim garb” made him nervous on planes. In one sentence and a flurry of defensive media appearances, Williams legitimized the most forceful image of Muslims in the panoply of prejudices: that they are violent and deserve to be feared.

By implication, they also deserve to be heavily screened, closely interrogated, and perhaps even kept off planes and restricted in other ways. Williams didn’t go that far, and perhaps he would not, but he showed remarkable ignorance about the power of this sweeping generalization in a society still traumatized by 9/11. Neither his race nor his writings on the civil rights movement seem to have given him much insight into how bigotry works, how insidious and encrypted it can be, and how exposed Muslims are to its harms.

It has taken a long time in America to reach a stage where prejudiced statements about certain groups are denounced and penalized. We have gradually built a superstructure of inhibitions to expressing stereotypes about Jews and blacks, for example, enough to impede bigotry in overt forms. But Muslims have not yet been brought under the umbrella of protection. NPR deserved credit for trying to do so, although it can hardly stand against the onslaught: Witness the slandering of Muslims in the House hearings on their supposed radicalization.

The fact that different groups are shielded differently could be seen in the varied reactions to the departure of other media figures in the months before the Williams incident. In August, 2010, Dr. Laura Schlessinger left her call-in show after a black woman, married to a white man, phoned to complain that her husband was using the “N-word.” Schlessinger replied: “Black guys use it all the time. Turn on HBO and listen to a black comic, and all you hear is n****r, n****r, n****r. I don’t get it. If anybody without enough melanin says it, it’s a horrible thing. But when black people say it, it’s affectionate. It’s very confusing.” The caller, saying she was appalled at Schlessinger using the epithet, got this retort: “N****r, n****r, n****r is what you hear on HBO,” then added: “Don’t take things out of context. Don’t NAACP me.” After the call ended, Schlessinger declared: “If you're that hypersensitive about color and don't have a sense of humor, don't marry outside of your race.” She apologized the next day but retired from her show.

Outside a White House Jewish Heritage Celebration on May 27, 2010, UPI’s veteran White House correspondent, Helen Thomas, was fired after a brief television interview that went like this:

Q: Any comments on Israel?

Thomas: Tell them to get the hell out of Palestine.

Q: Oooooh. Any better comments on Israel?

Thomas: Remember, these people are occupied. And it’s their land. It’s not German, it’s not Poland.

Q: So where should they go, what should they do?

Thomas: Go home.

Q: Where’s their home?

Thomas: Poland. Germany.

Q: So the Jews should go back to Poland and Germany.

Thomas: And America and everywhere else.

On a radio talk show in September 2010, CNN anchor Rick Sanchez got into a repartee about the comedian Jon Stewart, who was lampooning him frequently on The Daily Show. Sanchez called Stewart a bigot who was comfortable only with people like himself. As a Hispanic, Sanchez reported experiencing substantial prejudice. When the host, Pete Dominick, pointed out that Stewart was Jewish and that he would naturally identify with people subjected to discrimination, Sanchez slid very close to the ancient stereotype of Jews as all-powerful, controlling. “Very powerless people,” he said sarcastically, snickering. “Please, what, are you kidding? I’m telling you that everybody who runs CNN is a lot like Stewart, and a lot of people who run all the other networks are a lot like Stewart, and to imply that somehow they, the people in this country who are Jewish, are an oppressed minority? Yeah.”

Sanchez was fired. Significantly, there was no upsurge of outrage at Schlessinger’s departure over her use of the N-word (even though she was only commenting crudely on its use by blacks), no uproar over Thomas’s dismissal, and only a minor rush of complaints about Sanchez’s. They had all insulted or generalized about groups that have acquired at least a modicum of protection: African-Americans and Jews.

But when Juan Williams was fired for stereotyping Muslims, a relatively unprotected group, Republicans rallied to his defense, vilified NPR, and mobilized to cut off funds for the network and the Corporation of Public Broadcasting. Fox News gave him a $2 million contract, and huge numbers of Americans expressed their indignation.

It is worth looking closely at the offending remarks, made to Bill O’Reilly on Fox, where Williams also worked as a contributor. “Look Bill, I’m not a bigot,” Williams said, an introductory remark that usually seeks absolution for the bigoted remark about to come. “You know the kind of books I’ve written about the civil rights movement in this country. But when I get on a plane, I gotta tell you, if I see people who are in Muslim garb, and I think, you know, they’re identifying themselves first and foremost as Muslims, I get worried, I get nervous.”

To give Williams his due, he then tried to caution against indulging in the sweeping generalizations to which he had just given license. He quoted President Bush as saying that we were not in a war against Islam. He attempted to say that not all Muslims should be classified as extremists, just as all Christians shouldn’t be blamed for the Christian Timothy McVeigh’s bombing of the federal building in Oklahoma City. But O’Reilly followed his usual pattern of talking over his guest, insistently interrupting so that Williams had trouble making a coherent point.

Williams might have cleaned up his record later, but he passed up the opportunity. On an hour-long appearance on public radio’s Diane Rehm Show, he stuck stubbornly to his line that he had every right to his opinions, and listeners had every right to know them. Perhaps, but there is no constitutional right to be an NPR analyst, and the uninformed nature of his remark—if nothing else, did he not know that the 19 hijackers had carefully dressed in Western “garb”?—underscored his lack of qualifications for that job, something that NPR listeners had understood for a long time.

NPR hadn’t been comfortable with Williams’s opinionated appearances on Fox and his lackluster performance on NPR, and this straw broke the camel’s back. The result was an undignified spectacle by NPR’s leadership—dismissal over the phone without giving Williams a chance to explain or amend, and an uncouth comment by NPR president Vivian Schiller (now also fired) that he should have kept his feelings about Muslims between himself and “his psychiatrist or his publicist.”

But bad form shouldn’t overcome solid substance, and it took Ron Schiller (no relation to Vivian) to pull things back into perspective, for the hidden camera of the right-wing stingers posing as Arab donors.

Schiller had this to say, in a little soliloquy that the sting operators must have found so outrageous that they left it in their heavily edited clip: “In all of the uproar, for example, around Juan Williams, what NPR did I’m very proud of, and what NPR stood for I’m very proud of. And what NPR stood for is non-racist, non-bigoted, straightforward telling of the news. Our feeling is that if a person expresses his or her opinion, which anyone is entitled to do in a free society, they are compromised as a journalist. They can no longer fairly report. And the question we asked internally was, can Juan Williams, when he makes a statement like he made, can he report to the Muslim population and be believed? And the answer is no. He lost all credibility, and that breaks your basic ethics as a journalist.”

Well said. Incidentally, Schiller also refused to take the stingers’ bait to denounce Jewish donors as attempting to tilt NPR coverage toward Israel, stating that no such attempt had come to his attention. Unfortunately for him, these stood out starkly as sensible comments amid his own stereotyping of conservatives as gun-toting, anti-intellectual racists (in some cases quoting others approvingly)—not to mention his argument that NPR would do better without government funding. Evidently, he will get his wish.

Self-Censorship: To Write or Not To Write

2011-03-03T21:31:00.006-05:00

By David K. Shipler

One April morning in 1984, my friend Amos Elon, the Israeli writer, appeared unannounced at my door in Jerusalem. He looked grave, without the touch of wry irony that often played around his eyes. He had walked the few blocks from his house to give me startling news, which he was not willing to speak about by phone.

What he had to say propelled me into a conflict between ethics and the law, forcing a decision that another reporter might have made another way.
I’ve been thinking about it lately as The New York Times and The Washington Post have come under readers’ criticism for bowing to a government plea to withhold the fact that Raymond A. Davis, the American claiming diplomatic immunity after killing two Pakistanis, was a CIA contractor. The government feared for his life if the CIA connection was revealed, and wanted time to get the Pakistanis to move him to safety. Only after The Guardian in London went ahead with the report did the Times and the Post publish.

This took me back to 1984, when I was Jerusalem bureau chief for the Times. I had just covered a bus hijacking by four Palestinian terrorists, who had forced it into Gaza to demand a release of Palestinian prisoners. All night Israeli commandos had practiced raiding an empty bus, and just before dawn they swept aboard the one holding 35 hostages, rescuing all except for a 19-year-old woman soldier who was hit by gunfire when she failed to keep her head down. After a delay, the army announced that two of the hijackers had been killed during the raid, and the other two had “died on their way to the hospital.”

That seemed to be the end of the story until Amos came to my door. He told me what he had heard: that two Israeli photographers on the scene had taken pictures of two of the terrorists, alive and looking unscathed, as they had been led away from the bus. The Israeli military censor had prohibited publication of the photographs.

The meaning was obvious. If true, the two who had “died on their way to the hospital” had actually been murdered while in Israeli custody as prisoners. I called the photographers. One, for Israel’s largest newspaper, Maariv, said he would not try to confirm that his subject was a hijacker, because he did not want to face a choice between journalism and patriotism. By contrast, the other photographer, for an upstart tabloid named Hadashot, went to lengths to identify his man.

When questioned, a middle-level military spokesman, insisting that Israel did not kill prisoners, speculated that the men pictured might have been hostages, not hijackers. So I went to look at Hadashot’s photograph. The man had handcuffs on his wrists—not what a rescued hostage might be wearing. His face was free of bruises, and he was dressed in a light-colored jacket with no sign of blood; the picture was so clear you could count the links on his watchband.

Then, since the authorities had helpfully named the hijackers and their hometowns in the Gaza Strip, I drove down to where the army had taken its usual revenge on the families of terrorists by destroying their houses. Comparing the picture I’d seen with photos in the local school’s records, plus family photos shown to me by the hijacker’s uncle, I confirmed that at least one of the men was one of the terrorists, apparently alive and well when captured. The uncle also said that when he had been summoned to make an identification, his nephew’s body was badly battered.

I never hesitated to write. I knowingly violated censorship. I never asked my editors in New York to make a decision, and Israeli officials didn’t have a chance to request that we withhold the story. Our Israeli photographer, Micha Bar-Am, who reluctantly accompanied me to Gaza, worried that the news might endanger Israeli soldiers being held prisoner by Syria and various factions of the Palestine Liberation Organization. And several days later—after the initial stories had run—Defense Minister Moshe Arens asked me directly to stop writing about the incident, lest Israeli prisoners be executed in retaliation. I didn’t stop; it was too late anyway—the story was out.

Was I right? I believe so, but I had a few tense weeks of worry that Syria or the PLO might take revenge. Gradually that risk seemed to pass, and in the end, no Israeli prisoners were killed. Further, as I learned a couple of years ago, publicizing the murders—which were committed not by the army but by Israel’s domestic security service, the Shin Beth—provoked significant revisions in policy and practice designed to prevent any such crime from recurring. Contrary to official fears, reporting on the incident did not cause deaths but evidently saved lives.

The moral of the story seems to be this: Journalists cannot predict the impact of what they report, and neither can government officials, so it is usually better to play the role of reporter honestly and completely, and tell the story without dodging and weaving around facts in speculation about what they might provoke. That’s the easy conclusion. However, I admit in retrospect that had the outcome been different—had Israeli prisoners been murdered—I might not feel as sure of myself as I did at the time, and still do today. I sympathize with editors and reporters who struggle with similar concerns. The choices are not always clear, and sometimes a different calculation has to be made. Indeed, in doing another story from Israel, I honored an official’s request to withhold a fact, and I’m comfortable with that decision as well.

I was writing about Israel’s extensive commercial and security connections that had been developed with African countries even without establishing formal diplomatic ties. David Kimche, a former Mossad official who had become director general of the Foreign Ministry, was eagerly touting Israel’s de facto acceptance in that part of the world. As evidence, he noted that so many Israelis and their families were living in some African countries that Hebrew-language schools had been created for their children.

After I returned to the office and was writing, I got a call—whether from Kimche himself or the Foreign Ministry’s press officer I can’t remember—asking if I would be willing to refrain from mentioning the schools. If their existence became known, they might become targets of terrorism.

I didn’t hesitate. I said that of course I would leave them out of the story. (There is no risk in reporting this 30 years later without the names of the countries.) It was a minor sacrifice journalistically. The schools, while illustrative, were not the heart of the story. And of course I was not suppressing information about a crime.

The general who served as the army’s chief spokesman during the bus hijacking also did not want to cover up a crime, he told me after my initial stories. He was distressed that one of his underlings had said publicly that the prisoners could not possibly have been killed after capture; the general requested that I check directly with him before publishing any further army statements. He explained how carefully he had composed his press announcement, saying neither that the prisoners had been murdered—beaten to death, as it was later revealed—nor that they had died during the rescue operation. I have prisoners in PLO hands, he also told me, but he would not be a party to covering up murder. He said it just that way, a stunning confirmation of the crime.

The military censor was also highly indignant that his good offices, designed to protect secrets and not reputations, had been misused in this affair, I learned later. Significantly, neither he nor his subordinates ever said a thing to me about violating the law. This was uncharacteristic. Much lesser breaches in the past, mostly oversights in failing to submit articles on military matters for prior censorship, would bring a polite invitation from a colonel to come for coffee, where I’d get a gentle reminder on the topics requiring clearance. This time, there was no invitation to coffee.

Only the civilian head of the government press office was ordered to summon me for a dressing-down, but it was more like a friendly chat designed to manufacture some absolution. You probably didn’t know this hijacking story was subject to censorship, he said. Incorrect, I replied. I knew very well. He looked chagrined. Well, you won’t do it again, right? I won’t tell you in advance what I am going to do, I said. I explained that I’d always known that one day I might find myself in a clash between my journalistic ethics and Israel’s censorship law. This was the first time in my five years there that it had happened, but I couldn’t guarantee that it wouldn’t happen again.

So he asked me to help him and his assistant write a press release announcing that he had reprimanded me, a mild alternative to withdrawing my press credentials, which some cabinet ministers wanted. The two officials began going over wording with me. Stop, I said. It’s your press release, not mine. Say what you need to say. They did, portraying the session as a good deal harsher than it was. Clearly, ambivalence about censoring news of a double murder permeated the Israeli establishment, both military and civilian.

Once publicized, the crime generated investigations. The attorney general recommended prosecuting an army general who had pistol whipped the prisoners, and five Shin Beth agents, three soldiers, and three police officers who were implicated in the beating. The general was acquitted in an army hearing. The head of the Shin Beth, who was present and was accused by colleagues of ordering the murders, was forced to resign, but the prosecutions were aborted when Israel’s president issued a blanket pardon in advance, reportedly to avoid testimony that such treatment of prisoners had been authorized by superiors.

All this reaffirms what I believed then and now: that the reporter’s sacred trust in a free society is to report, not to suppress. It is to expose, not to conceal. It is to turn problems into the sunlight, not to keep them in the shadows where they will only fester. Extreme circumstances may rarely—only rarely—justify self-censorship, but only if it remains an acutely uncomfortable act for writers and editors, contrary to their mission. If it sets a precedent that government invokes the next time and the next, and if journalists get used to doing it, we are all poorer.

Can You Frisk a Hard Drive?

2011-02-20T10:28:00.002-05:00

By David K. Shipler
(Published in The New York Times Week in Review Feb. 20, 2011)

If you stand with the Customs and Border Protection officers who staff the passport booths at Dulles airport near the nation’s capital, their task seems daunting. As a huge crowd of weary travelers shuffle along in serpentine lines, inspectors make quick decisions by asking a few questions (often across language barriers) and watching computer displays that don’t go much beyond name, date of birth and codes for a previous customs problem or an outstanding arrest warrant.
The officers are supposed to pick out the possible smugglers, terrorists or child pornographers and send them to secondary screening.

The chosen few — 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 — get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection. Into the computer the passport officers type the reasons for the selection, a heads-up to their colleagues in the back room, where more thorough databases are accessible.

And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people’s hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.

Digital inspections raise constitutional questions about how robust the Fourth Amendment’s guarantee “against unreasonable searches and seizures” should be on the border, especially in a time of terrorism. A total of 6,671 travelers, 2,995 of them American citizens, had electronic gear searched from Oct. 1, 2008, through June 2, 2010, just a tiny percentage of arrivals.

“But the government’s obligation is to obey the Constitution all the time,” said Catherine Crump, a lawyer for the American Civil Liberties Union. “Moreover, controversial government programs often start small and then grow,” after which “the government argues that it is merely carrying out the same policies it has been carrying out for years.”

One of the regular targets is Pascal Abidor, a Brooklyn-born student getting his Ph.D. in Islamic studies, who reported being frisked, handcuffed, taken off a train from Montreal and locked for several hours in a cell last May, apparently because his computer contained research material in Arabic and news photographs of Hezbollah and Hamas rallies. He said he was questioned about his political and religious views, and his laptop was held for 11 days.

Another is James Yee, a former Muslim chaplain at the Guantánamo Bay prison, who gets what he wryly calls a “V.I.P. escort” whenever he flies into the United States. In 2003, Mr. Yee was jailed and then exonerated by the Army after he had conveyed prisoners’ complaints about abuse, urged respect for their religious practices and reported obscene anti-Muslim caricatures being e-mailed among security staff.

Years later, he evidently remains on a “lookout” list. A federal agent stands at the door of Mr. Yee’s incoming plane, then escorts him to the front of the passport line and to secondary screening.

Arriving in Los Angeles last May from speaking engagements in Malaysia, he was thoroughly questioned and searched, he said, and his laptop was taken for three or four hours. He was not told why, but after it was returned and he was waiting to rebook a connecting flight he’d missed, a customs officer rushed up to the counter. “We left our disk inside your computer,” he quoted her as saying. “I said, ‘It’s mine now.’ She said no, and sure enough when I took the computer out, there was a disk.”

Customs won’t comment on specific cases. “The privacy rights that citizens have really supersede the government’s ability to go into any depth,” said Kelly Ivahnenko, a spokeswoman.

In general, “we’re looking for anyone who might be violating a U.S. law and is posing a threat to the country,” she explained. “We’re in the business of risk mitigation.”

Yet the mitigation itself has created a sense of risk among certain travelers, including lawyers who need to protect attorney-client privilege, business people with proprietary information, researchers who promise their subjects anonymity and photojournalists who may pledge to blur a face to conceal an identity. Some are now taking precautions to minimize data on computers they take overseas.

“I just had to do this myself when I traveled internationally,” said Ms. Crump, the lead attorney in a lawsuit challenging the policy on behalf of Mr. Abidor, the National Association of Criminal Defense Lawyers and the National Press Photographers Association.

During a week in Paris, where she lectured on communications privacy, she had legal work to do for clients, which she could not risk the government seeing as she returned. “It’s a pain to get a new computer,” she said, “wipe it completely clean, travel through the border, put the new data on, wipe it completely clean again.”

In simpler days, as customs merely looked for drugs, ivory, undeclared diamonds and other contraband that could be held in an inspector’s hand, searches had clear boundaries and unambiguous results.

Either the traveler had banned items, or didn’t. Digital information is different. Some is clearly illegal, some only hints at criminal intent, and under existing law, all is vulnerable to the same inspection as hand-carried material on paper.

Most pirated intellectual property and child pornography, for example, cannot be uncovered without fishing around in hard drives. “We’ve seen a raft of people coming from Southeast Asia with kiddie porn,” said Christopher Downing, a supervisor at Dulles. If a person has been gone only two or three days and pictures of children are spotted in a bag, he explained, the laptop is a logical candidate for inspection. Such searches have been fruitful, judging by the bureau’s spreadsheets, which list numerous child pornography cases.

But terrorism is an amalgam of violence and ideas, so its potential is harder to define as officers scrutinize words and images as indicators of attitudes, affiliations and aspirations. Random searches are not done, Mr. Downing said, although courts so far have upheld computer inspections without any suspicion of wrongdoing. In practice, something needs to spark an officer’s interest. “If you open up a suitcase and see a picture of somebody holding an RPG,” he noted, referring to a rocket-propelled grenade, “you’d want to look into that a little more.”

The search power is preserved by its judicious use, Mr. Downing said. “If you abuse it, you lose it.” he added. The A.C.L.U. doesn’t want customs to lose it, Ms. Crump explained, but just wants the courts to require reasonable suspicion, as the Supreme Court did in 1985 for examinations of a person’s “alimentary canal.” The court distinguished such intrusive inspection from “routine searches” on the border, which “are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” The justices added in a footnote that they were not deciding “what level of suspicion, if any, is required for nonroutine border searches” of other kinds.

Laptop searches should be considered “nonroutine,” Ms. Crump argues, something the United States Court of Appeals for the Ninth Circuit declined to do in 2008, when it reversed a judge’s decision to suppress evidence of child pornography obtained during a suspicionless airport computer search.

With the search powers intact, Mr. Abidor no longer dares take the train home from his studies at McGill University in Montreal. He doesn’t want to be stranded at the border, waiting hours for a bus, as he was in May. So on Dec. 22, his father drove up from New York to get him for vacation. The men were ordered to a room and told to keep their hands on a table while customs officers spent 45 minutes searching the car, and possibly the laptop, Mr. Abidor said. “I was told to expect this every time.”

Israelis and Palestinians: Negotiating History

2010-12-07T19:23:00.003-05:00

By David K. Shipler

If you think you know your biblical history, think again. Leading Palestinians have been revising the Old and New Testaments for years, subtracting Jews from ancient Jerusalem even as Jews today assert their Right of Return to the holy city.

This is the centerpiece of a broader revisionism that threatens the peace process, and American, Israeli, and Palestinian negotiators can’t ignore it and hope to make progress. They usually concentrate on the Little Story, but they need to address the Big Story. The Little Story is about drawing borders, swapping acreage, and arranging security between Israel and a Palestinian state. The Big Story is the historical narrative—actually two historical narratives—that produce the deepest yearning and the hardest questions: 1) How will Jerusalem be shared? and 2) Will Jews and Arabs give up their Right of Return to the lands held by their opponents? Once back at the table, negotiators might consider tackling them first, and not putting them aside as they’ve tended to do for nearly two decades of intermittent talks.

[Update: E-mails and minutes of negotiating sessions, published in January 2011 by Al-Jazeera, show that progress was made on both Jerusalem and the return of Palestinian refugees toward the end of Prime Minister Ehud Olmert's administration. Under one proposal, Jewish areas of Jerusalem would stay under Israeli jurisdiction, Arab areas would go to the Palestinians, and the Old City with his holy places would be placed under international oversight. The two sides haggled over the numbers of refugees or their descendants who would be allowed to move into Israel proper: Palestinian negotiators proposed 10,000 a year for ten years; Israel wanted only 1,000 a year for five years. Revelations of the concessions sparked severe criticism of the Palestinian Authority, however, and the government of Israeli Prime Minister Binyamin Netanyahu has abandoned Olmert's offers.]
These are tough issues because they are rooted in clashing versions of history, and history in that part of the world is linked directly to identity. Each side dismisses the other’s historical narrative, casting aspersions on the other’s legitimacy as a people who belong in the tiny slice of territory between the Jordan River and the Mediterranean Sea. Israeli Jews do this to the Palestinian Arabs much less than they used to, but Palestinians still vigorously do it to the Jews. Rewriting the past has clear implications for the future. That’s why it provokes furious reactions.

Prominent Palestinians have asserted for years that there were no Jewish temples in Jerusalem. Solomon didn’t build his there, and the Second Temple under Herod (from which Jesus expelled the money-changers) never stood on the manmade plateau that Jews call Mount Moriah or the Temple Mount, in Jerusalem’s Old City. Muslims know the place as Haram al-Sharif, the Noble Sanctuary, the third holiest site in Islam with its al-Aqsa mosque. Even after the 1993 Oslo accord that was supposed to constitute mutual recognition, Temple denial was promulgated by Yasser Arafat, head of the Palestine Liberation Organization, and President Hosni Mubarak of Egypt.

The latest amendment to the past was a “study” posted for nine days in November on the Web site of the Palestinian Authority’s Ministry of Information. It argued that the Western Wall, which is the plateau’s massive retaining wall and the Jews’ most hallowed place of prayer, isn’t really Jewish at all, doesn’t belong to the Jews, and carries no sacred meaning in ancient Jewish tradition. The internal logic is self-justifying: No Jewish temple, so no authentic Jewish connection to the Western Wall.

This is not a new line. In 2001, I heard the same thing from Hassan Barghouti, headmaster of Jerusalem’s leading Islamic training institution, the al-Aqsa School, located on Haram al-Sharif. “When it comes to Jerusalem, Jews have nothing to do with it—nothing,” he told me then. “The Wailing Wall is the wall of al-Aqsa.” The identical point was made by Sheikh Tayseer Tamimi, second to the Grand Mufti of Jerusalem, and now chief justice of the Palestinian Islamic courts. “In Jerusalem, there is no such holy place for the Jews,” he told me. “The Temple, which they claim, this claim is not proven . . . The Israeli claim about the Temple and the Western Wall is to achieve political goals. Its aim is to enforce Jewish sovereignty over Jersualem, There is no proof.”

Had the November “study” not been consistent with such statements by influential Palestinians over the years, it might have been written off as a silly rant by a small-minded functionary. But the crank history touches a nerve and reveals the inflamed heart of the conflict. That heart is where diplomacy needs to go.

The weight of the matter was measured in Israel’s sharp response. “Reprehensible and scandalous,” Prime Minister Benjamin Netanyahu labeled the assertion, which “calls into serious question [the Palestinian Authority’s] intentions of reaching a peace agreement, the foundations of which are coexistence and mutual recognition,” he warned. His deputy foreign minister, Danny Ayalon, followed up with a detailed refutation in The Jerusalem Post under the title, “Palestinian Revisionism is the Only Obstacle to Peace.” This may have been a little overdrawn (there are other obstacles), but not much, given Israelis’ fears that Palestinian statehood will be used as a stepping stone to their expulsion. A week later, as the “study” remained on the Information Ministry’s site, the State Department jumped in, denouncing the claim as “factually incorrect, insensitive, and highly provocative.” It took two more days for the post to be taken down, but its author, Deputy Information Minister Al-Mutawakil Taha, stuck by his position.

In a more perfect world, the Temple Mount/Noble Sanctuary might be common ground. Its outcropping of bedrock is taken by Christians and Jews to be the place on which Abraham prepared to sacrifice his son Isaac, in obedience to God’s command, and is revered by Muslims as the place from which Muhammad left Earth on his night journey to heaven and back. Tradition holds that Muhammad led other prophets in prayer at the site. No mosques existed then, of course, but the bedrock is now contained in the Muslim shrine known as the Dome of the Rock; nearby stands al-Aqsa mosque.

Islam is not full of miracles, and this one, the night journey, invites the most outspoken Muslim leaders to lay exclusive claim to the place. Yet the opposite conclusion is drawn by one respected Palestinian philosopher, Sari Nusseibeh, who thinks the legend actually confirms the existence there of the Jewish Temple.
“It is beyond doubt that the actual physical spot in question couldn’t have first acquired its holiness or sanctity from Muhammad’s visit,” he wrote in 2009. “Rather, Muhammad’s visit must have been made because of the spot’s already-existing sanctity.” some years earlier, he had given me a more specific “controversial explanation” of the basis for Islam’s attachment to Jerusalem: God could descend to any place on earth, he said, but a person could be raised to God from only the holiest place, and that was marked by the Jewish Temple. Otherwise, why not lift Muhammad up from Mecca? Why in the tradition did he have to pass through Jerusalem? “From the Muslims’ point of view, the gateway to God is Jerusalem,” Nusseibeh explained. “I believe that when the [al-Aqsa] mosque was built in the first place, it was built as a recreation of the Temple.” Indeed, he noted, until Zionism, Muslim writings included references to the Temple there. “The Jews are part of our history as Muslims,” he declared, “and it’s stupid to deny it.” Denying Judaism’s place, he believed, was to deny part of Islam.

Despite Nusseibeh’s standing built on centuries of family history in Jerusalem, he is isolated in his views, and severely criticized by fellow Palestinian Muslims for his tolerance. Purely religious disagreements can coexist, especially when they don’t overlap on sacred sites, but this one has temporal implications more political and sociological than theological. Temple denial, which is reportedly taught in some Palestinian classrooms, reminds Jews that even in the place most intricately entwined with ancient Jewish roots, they are portrayed as alien. If Palestinians want to erase Jewish history, why wouldn’t they try to erase the Jewish state itself?

Diplomats have trouble with this existential dimension of the conflict, which can’t be spread out smoothly on a bargaining table and seems too psychological to trace on maps and write into legal language. Yet the issues of legitimacy and respect are more than touchy-feely questions. They involve the central problem of whether the two peoples can respect each other’s legitimacy on this sliver of land.

It’s hard to see how they will get there without honoring each other’s history and abandoning some of their own historical desires. First, they’ll have to decide how to share Jerusalem, for which the Palestinians will need support from the larger Muslim world. Palestinians don’t make this easier with tracts denying Jewish connections to the holy city, and Israelis erect obstacles on the ground by evicting Arab residents and expanding Jewish neighborhoods. No peace plan can survive without a Jerusalem compromise.

Second, each side will have to drop its coveted Right of Return: Israeli Jews cannot keep returning to the biblical lands of Judea and Samaria (the West Bank) by building suburban apartment blocs that go under the misnomer “settlements.” They close off options, leaving less and less territory available for a Palestinian state. For their part, Palestinians cannot keep agitating to return to vanished Arab villages inside what is now Israel, depopulated during the Jewish state’s 1948 war of independence. When they brandish keys to their old houses during demonstrations, or teach their children to yearn for places long gone, Palestinians fuel Israelis’ anxieties about the ultimate agenda.

All Arabs who left their homes in 1948 were deliberately expelled, according to the Palestinian argument. No Arabs were expelled at all but left only because Arab leaders told them to, Israel claimed for decades. In 1979 Israeli censors barred even Yitzhak Rabin from describing in a memoir his prominent role in removing Arab civilians from Lod and Ramle, two towns near Tel Aviv. He was silenced on this telling piece of history despite his stature as former prime minister, defense minister, and commander of the Harel Brigade in 1948. It was on this point that I first met him. I went to his small office armed with the deleted account, given to me by his translator.

Initially he hesitated to discuss it, then expressed surprise that it had been censored, said he didn’t know why, and added wryly that he had deliberately given the censors something else to do by including material about Israel’s nuclear weapons.

Later, a version closer to the truth found its way into Israel’s textbooks and documentary films as the classification of Israeli archives expired, revealing that some Arabs had indeed been expelled, while others had simply fled the fighting to safety, as civilians do in every war. Still others—including an old woman I met in a refugee camp in Lebanon—may have been told to leave by Arab leaders planning on a quick victory and return. Reality is so messy, and it satisfies neither side. The Palestinians tend to ignore the complexities, and the Israelis squabble over them. With every new edition of a textbook used in Israeli schools, tussles erupt in the Education Ministry—the latest whether the texts should expose the tender minds of Israeli students to the Arabs’ term for Israel’s creation, al-Nakhba (the Catastrophe).

Considering how long the United States took to acknowledge the suffering imposed on Native Americans, Israel has moved quickly, and without the enduring sense of security usually required for a confident look backwards.

It’s too bad that peace negotiators can’t dictate the portrayal of history. What they can do once they get back to the table is put the toughest historical disputes—Jerusalem, the Right of Return—at the top of the agenda, which is where they belong. They might bear in mind the joke told by Russians under communism:

Question: What is the definition of a Soviet historian?
Answer: A person who can predict the past.

David K. Shipler was Jerusalem bureau chief of The New York Times from 1979 to 1984. He won the Pulitzer Prize for Arab and Jew: Wounded Spirits in a Promised Land.