Guns: Working Around the Second Amendment

By David K. Shipler

            Please forgive the cynicism, but here’s a prediction: For all the heartfelt hand-wringing and passionate calls to action since the Newtown massacre, Americans will not be made safer from gun violence. After a year or five years (let’s give Congress plenty of time), the country will still be awash in firearms, they will still be available to many untreated mentally ill people, and mass shootings will still occur on occasion, probably even in schools. Guns exist in a perfect storm of politics, law, and culture not easily revised.

In the most optimistic scenario, the Second Amendment might serve as an asset to those favoring modest controls, for under recent Supreme Court rulings, gun ownership is no longer jeopardized. Recognizing an individual right to bear arms rather than one based only in state militias, the thin conservative majority has effectively eliminated what the National Rifle Association and its supporters saw as the dire threat that all guns would eventually be outlawed and taken from the hands of law-abiding citizens.

That cannot happen as the Second Amendment is now interpreted. In both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), a 5-4 majority ruled that the right to keep a loaded gun at home was protected by the Second Amendment. Whether the right extends to handguns outside the home remains uncertain until the justices consider cases that have been decided differently in lower courts.

The Right to Exploit

By David K. Shipler

            No political movement in America can match the dazzling facility with words mastered by conservative Republicans. From “death tax” to “pro-life,” they brand complex issues with simplistic slogans that slide easily into conversation. So it has been with “right-to-work” laws, just passed in Michigan, and now on the books in 24 states.

            Like the “right to life,” the “right to work” is not a right but a diminution of a right, one that has contributed to the lowest labor union membership in decades, currently just over half the rate of thirty years ago. Only 6.9 percent of those employed in the private sector belong to unions, which are nearly extinct in the free enterprise economy. The unions’ last bastion is in government, where 28.1 percent of federal, 31.5 percent of state, and 43.2 percent of local government employees (mostly teachers, firefighters, and police officers) are unionized. This leaves the country’s overall union membership, public and private, at 11.8 percent, down from 20.1 percent when comparable data collection began in 1983.

            The result is not a free market in labor but a rigged market, one in which the seller is relatively powerless next to the buyer. No seller of her labor to Walmart can bargain alone against the gargantuan buyer, the employer who unilaterally sets the price. Low-skilled workers, especially, are not in a position to negotiate individually; with no coin of professional talent to put on the table, they must bargain collectively or not at all.

Congress in Wonderland

By David K. Shipler

            “EAT ME,” said the note on the plate of cookies. So Senators John McCain and Lindsey Graham took bites and rapidly shrank until they were small enough to fit through the tiny door into the halls of Congress.

            There, mingling with their same-sized colleagues, these once-larger men badgered the White House and U.N. Ambassador Susan Rice about her account of the attack on the U.S. mission in Benghazi, Libya, parsing the language of the CIA’s talking points she had been given, which had carefully excised a reference to a terrorist group because the information remained classified to protect intelligence gathering.

            The trouble with being very small is that you can’t get an overview of the very big problems that tower around you.

Should We Talk to Hamas?

By David K. Shipler

            It’s nice for Egypt’s new government, led by the Muslim Brotherhood, that the United States has handcuffed itself by refusing to deal directly with Hamas. And perhaps it’s just as well, since Egyptian President Mohamed Morsi has more influence with Hamas than Secretary of State Hillary Clinton would. Plus, he gets to play a pivotal role in the eternally exasperating Israeli-Palestinian conflict. Lucky him.

            But it’s not so great for American interests that the “terrorist” label, which the U.S. government has imposed on Hamas, carries such a broad set of taboos as to restrict Washington’s flexibility in a crisis.

Hamas employs terrorism, obviously—witness today’s bus bombing in Tel Aviv, the random rocketing of Israeli civilians—but it was also elected to govern Gaza, which Israel voluntarily left to the Palestinian residents in 2005. Denying Hamas the symbol of legitimacy it would gain through contact with American officials may be morally satisfying, but it has about as much impact on reality as the U.S. embargo of Cuba.

The Longer Campaign: Radicalizing America

By David K. Shipler

            The most significant lesson of the election may be one that has gone practically unnoticed: Conservatives have failed to radicalize the American electorate, even after years of well-organized, heavily-financed efforts. Most voters have not been pushed to the extremes, not by Fox-News and Rush-Limbaugh propaganda, not by thinly encrypted appeals to racial bigotry, not by evangelical preachers threatening the wrath of God for abortion and same-sex marriage. Fire and brimstone ain’t what they used to be.

As the pundit class has observed, Republicans have been left behind by the demographic shift. But that’s not the whole story. The group identities that have always described the landscape of American politics run deeper than skin color or national and religious heritage. Groups have real political interests and resilient attitudes, not easily manipulated in an open society where multiple voices can be heard.

To Vote or Not To Vote

By David K. Shipler

            “Have you registered to vote?” the white cashier asked the black cashier at a hardware store. Both young women looked barely 18.

            “No,” the black woman answered, because then she’d get called for jury duty.

            I groaned out loud. So did a man at the next counter. You have to vote, we told her. In the quarter century since I’d moved to this county in Maryland, I explained, I’d been called for jury duty a total of two times. The other guy said his total was zero. Then he corrected himself: once, he said.

            People give lots of reasons for not voting, and the lower the income, the lower the turnout, a fact that hurts Democrats and those who want to boost government anti-poverty programs. I’ve heard non-voters say that voting won’t change anything and takes time they don’t have. They can’t get off from work, they’re stressed and busy, and they’ve been made dizzy by the barrage of lying campaign ads. But to avoid jury duty? That was a first. (It was also mistaken, because jury pools in Montgomery County, where we were standing, are drawn from lists of licensed drivers as well as registered voters.)

“This is terrible!” my fellow shopper declared. “It’s part of being a citizen.” You have to vote, we both told her. She gave us a pleasant smile.

Civil Liberties: Liberals Give Obama a Pass

By David K. Shipler

Published at Salon.com Nov. 3, 2012

Let us stipulate, as lawyers like to say, that President Obama has a deplorable record on civil liberties, one that threatens long-term damage to the country’s constitutional culture.

Why, then, has his base of support not been eroded decisively? Why have so many on the left fallen silent, after railing against George W. Bush’s rights violations, as Obama has prolonged and codified most of the same practices? And why have so few on the right, riding a groundswell of resentment toward big government, failed to resent the biggest governmental intrusions into personal privacy since the FBI’s domestic spying during the Cold War?

The Blessings of Romnesia

By David K. Shipler

Getting a fix on Mitt Romney’s positions and beliefs is like trying to nail a custard pie to the wall. But let’s give a small cheer for his Etch-A-Sketch routine on foreign policy. Holding his finger to the wind (while we’re mixing metaphors, we might as well go whole hog), he and his handlers apparently detected a fresh breeze of moderation among the electorate, so he abandoned his super-hawk routines on China, Russia, Iran, Syria, and Israel. As Vice President Joe Biden observed, Romney agreed with Obama so often during their debate that he seemed about to give the President his endorsement.

Fussy foreign-policy wonks have listed ad nauseam the important subjects ignored, bemoaning the lack of creative ideas, the surfeit of pedestrian formulas, and of course the factual misstatements, mostly by Romney--as in Obama’s fictional “apology tour.” But it’s encouraging that Romney now (at least for the moment) sees the center as the place to be when addressing the international maelstrom he will inherit if he wins.

This apparent shift is a little premature. It usually happens in the Oval Office, where the rigors of foreign affairs drive presidents toward the comfortable middle, no matter if they begin on the right or the left.

Syria: No Good Options

By David K. Shipler

A sad coincidence occurred this week. As the 14-year-old Pakistani campaigner for girls’ education, Malala Yousafzai, was being flown to Britain for treatment after being shot in the head by the Taliban, David Sanger of The New York Times was reporting from Washington that most small arms flowing to Syrian rebels were ending up in the hands of “hard-line Islamic jihadists.” On the surface, Pakistan has nothing to do with Syria, but when you throw Afghanistan into the picture, you get a cautionary tale.

In the late 1970s, the Soviet-imposed regime in Kabul sparked religious resistance in the Afghan countryside, in part by requiring schooling for girls, a socialist (and Western) doctrine that violated absolutist Islam. For a decade after Moscow’s 1979 invasion an insurgency of mujahideen, organized by regional warlords, bled the Soviet army with weapons from the CIA, finally driving the Russians into a humiliating withdrawal, much like America’s retreat from Vietnam.

Affirmative Action 2.0

By David K. Shipler

When admissions officers from thirty elite universities were asked how many of them were the first in their families to attend college, about two-thirds raised their hands. It was a stunning response, which surprised even them. Here were the gatekeepers for all the Ivy League schools—from Dartmouth to Harvard, Yale, Princeton, and the rest--plus an array of the other hardest schools to get into, from Amherst to Rice, Carleton, Stanford, Wellesley, Smith, Swarthmore, and the like. They were gathered in Aspen in 2004 to consider how to increase enrollment by students from low-income families.

I had been invited to speak to them about the dynamics of poverty, which some of them already understood very well. Their own upward mobility helped give them a sense of mission, which they were poised to take home to their respective presidents. Some have since succeeded, to a point, and others may do so soon, for race-based affirmative action is now in jeopardy before the Supreme Court. Class-based affirmative action is the likely substitute.

Mixing Religion Into Politics

By David K. Shipler

(published in Moment, Sept.-Oct. 2012)

If opinion polls on religion and politics are accurate, the American public reached a turning point last March, in the heat of the Republican primaries. For the first time in the 12 years that the Pew Research Center has been surveying attitudes, a plurality—38 percent—said that politicians talked too much about faith and prayer, exceeding the 30 percent who thought they talked too little. Until now, the figures had been reversed. The “too-little” camp reached a high of 41 percent in 2003. And this year, only 25 percent—down from 60 percent in 2001—felt that political leaders were expressing religious faith in just the right amount.

Does this indicate a growing distaste for candidates who mix religion into government? Let’s not get ecstatic quite yet. The First Amendment still sits uncomfortably on a good number of citizens, especially white evangelical Protestants.

Compassionless Conservatism

By David K. Shipler

I met Debra Hall in Cleveland years before Mitt Romney slandered 47 percent of all Americans as lazy parasites who want government to feed, house, and coddle them. She was 39, the single mother of two, and lived near poverty by working intensively at hard jobs that paid extremely low wages.

She learned how to type, how to keep an inventory, and how to drive a forklift, but she couldn’t find a job commensurate with her skills. Hired by a bakery, she was placed at a grueling conveyor belt; all the forklift drivers there were men. When I last saw her, she was getting up at 2 a.m., driving her beat-up car to the bakery, and putting in long, numbing shifts for $7.90 an hour. Yet when I asked her to list the reasons that she thought she had been confined to a life of poverty, she answered with one word: “Lazy.”

Lazy? I said. You work harder than I do. And harder than Mitt Romney, I’d now add. So, where does this self-indictment come from?

It’s not unusual to hear the poor blame themselves by using the same terminology inflicted on them by the upper classes.

Where Are All the Bumper Stickers?

By David K. Shipler

I just spent two days driving from Maine to Maryland and saw a total of five bumper stickers for presidential candidates. [Postscript: In 10 days of driving 1300 miles in rural Alaska, I saw no bumper stickers at all--only one for Romney when I got to Anchorage.] This is disastrous for undecided voters who are waiting for a revelation on the highway.

The first was a snappy slogan on a pickup in Maine: “Protect Freedom. Defeat Obama.” This was confusing. The young man behind the wheel didn’t look as if he meant a billionaire’s freedom from reasonable taxes, which Obama’s defeat would surely guarantee.

In Massachusetts, a hatchback came along with a red, white, and blue sticker in the middle of its cargo door: “NOT a Republican,” and an Obama-Biden sticker down on the bumper, where it belonged. The driver was behaving more safely than the young woman who cut me off at high speed on the interstate; as I hit the brakes, her “Romney” sticker loomed large. This is the kind of driving that can lose a candidate the election, as surely as Al Gore lost it when he sighed during a debate.

Here’s a reminder for drivers promoting candidates on vehicles: Undecided voters have X-ray vision.

Unfit Running Mates

By David K. Shipler

Only once since Ronald Reagan chose George H. W. Bush as his running mate in 1980 have Republicans picked a vice presidential candidate who was qualified to step into the Oval Office if necessary. He was Jack Kemp, former Housing Secretary, who ran with Bob Dole in 1996, a smart and solid man who could have been a decent president.

With all the rest, the Republicans have exposed the country to a high-stakes gamble with very bad odds. In 1988, Bush selected Dan Quayle, an inexperienced senator whose perpetual deer-caught-in-the-headlights look made him seem less than intellectually capable. He was a lightweight vice president who only recently, in cogent criticism of his party’s swing to the hard right, has shown the good sense he would have needed as president.

Dick Cheney, Vice President under George W. Bush, displayed such contempt for the Constitution’s protections of individual rights after 9/11 that, as a president unrestrained, he would have damaged the country’s structure of liberty even more extensively than Bush allowed him to do. (One Cheney gambit, which Bush rejected, was to knock down a pillar of American freedom by sending the Army in pursuit of a hapless so-called “sleeper cell” of wannabe terrorists in upstate New York. They were duly prosecuted by the civilian system.) Much of Cheney’s legacy has persisted under Obama.

The Amorality of the Market

By David K. Shipler

The lobstermen on the Maine island where I spend summers stayed home yesterday. They did not leave port to haul traps in the season that is usually the busiest and most lucrative of the year. It wasn’t the weather. The windless sea was as calm as gray glass, and the patchy fog burned off soon after sunrise—not that fog ever stops these guys anyway.

The reason they left their boats on their moorings, as many of their colleagues on the Maine coast have done from time to time this summer, was the ruthless market. Their co-op told them it wouldn’t be buying yesterday, because the price has fallen to the lowest since the 2008 economic collapse—at this moment, just $2.05 a pound “at the boat,” as they say. It’s slipped below $2.00 on other parts of the coast.

Money is Speech, Poverty is Silence

By David K. Shipler

As billionaires exercise their First Amendment right to freedom of speech by assaulting the country with propaganda, the poor remain quiet. Even as half a dozen Republican governors insist that they will not accept a penny of the federal government’s money to provide expanded Medicaid health insurance to the nearly poor, those citizens do not raise a voice.

The reason is obvious, but sometimes the obvious needs to be stated. The poor cannot afford to buy TV ads, produce slick Internet messages, or hire fancy public relations pros to manipulate vocabulary and insinuate their versions of reality into daily news coverage, talk-show babble, and political agendas.

This is the other side of the coin of freedom that the Supreme Court struck in its Citizens United decision overturning federal limits on campaign spending by corporations, unions, and other groups.

The Supreme Court: How to Encourage Police Profiling

By David K. Shipler

It’s too bad that Supreme Court justices can’t ride along incognito with police officers and see firsthand the frequent profiling that occurs. Then we might not get the sort of airy, wishful opinion that the Court delivered as it upheld the “show-me-your-papers” part of Arizona’s immigration law.

The majority warned that the provision would be constitutionally vulnerable if it were later shown to involve racial and ethnic profiling. But how else are officers to enforce it? They are mandated to check the immigration status of anyone they stop or arrest whom they have “reasonable suspicion” to think is in the country illegally. “Reasonable suspicion” is a squishy legal concept, a bit more than a hunch but a lot less than the “probable cause” required for an arrest. What constitutes “reasonable suspicion” near the Mexican border if not a swarthy complexion and a Spanish accent? The Arizona police aren’t going to be on the lookout for suspected Swedes.

Invisible Malnutrition and America's Future

By David K. Shipler

Senators from both parties are congratulating themselves for passing the agriculture bill yesterday as a model of bipartisan responsibility and healthy compromise—a model of just what legislators should do. But the result is not an example of what legislators should do. It cuts $4.5 billion from the $80-billion annual food stamp program, which helps keep 45 million Americans—most of them children—from the throes of malnutrition.

Responsible legislators would look ahead to the future of a country where millions of children get inadequate nutrients during critical periods of brain development. We know what that means—“we” being our society, which includes the neurologists and pediatricians and nutritionists and psychologists who have studied the lifelong impacts of early malnutrition. Their expertise never seems to penetrate the walls surrounding Capitol Hill.

A raft of research has found that the timing of nutritional deficiency during the most sensitive periods of brain growth can determine which mental capabilities are damaged. During the second trimester of pregnancy, the creation of neurons can be affected. During the third trimester, neuron maturation and the production of branched cells called glia, can be inhibited. From birth until about age two, food scarcity can assault the rapidly developing brain enough to lower I.Q. And even if good nutrition is restored later, there is no full recovery. Early deprivation creates lifetime cognitive impairment.

Obama and Romney Both Lose

By David K. Shipler

If you want to vote early, stop by Congdon’s Donuts in Wells, Maine and drop a coffee bean into the glass jar of your choice. You don’t have to be a professional bean counter to see the results so far. You can tell at a glance that Romney is trailing Obama, but not by much, and both are way behind the jar labeled “None of Em.”

Summarizing national moods is always risky, since a moody country such as ours has many emotions simultaneously. But the dark, shiny beans tell something about the level of alienation from political leaders, the cynicism about politicians, and the distaste for government that grow out of this period’s unusual fear of uncertainty and sense of personal vulnerability.

The Weight of Race in the Race

 By David K. Shipler

It will be instructive during this election campaign to watch certain conservative whites try to activate racist attitudes against President Obama without seeming to do so. This will be a challenge, in part because wild exaggeration will be necessary to make Obama into a caricature resembling the ugliest stereotypes of blacks.

Nothing about him fits the malicious images traditionally imposed on African-Americans by American society. He is not stupid, lazy, violent, dirty, criminal, corrupt, or immoral. He is a loving and responsible family man. He does not abuse power or behave arrogantly when he gets it. He does not see through a racial lens, does not remind whites of their guilt, and does not indulge in anti-white polemics. (Being biracial, of course, he is as white as he is black.)

Terrorism: The Ambiguity of Intelligence

By David K. Shipler

A strange aura of infallibility still surrounds the gatherers of secrets. Oddly, the false premise of the Iraq war seems not to have damaged public trust in the spy, the interrogator, and the computerized dragnet that captures and sifts petabytes of data. Whatever is hidden, and is ferreted out, carries a presumption of accuracy so seductive as to have beguiled a couple of federal judges, who have issued an unprecedented ruling that unverified intelligence reports deserve unquestioned acceptance. Only the Supreme Court has the power to break this spell, which it will consider doing tomorrow. [Update: The Court on June 11 decided not to review any of the seven habeas corpus decisions by the D.C. Circuit Court of Appeals, letting stand the pernicious opinion in Latif, described below.]

The espionage agencies’ reputations have been bolstered by the spectacular intelligence coups that have led to Osama bin Laden and, most recently, to the foiling of an aircraft bombing plot by a double agent who infiltrated al-Qaeda in the Arabian Peninsula to pose as the bomber himself. Nevertheless, scattered among the dramatic successes are untold numbers of dubious reports, false positives, half-truths, and outright absurdities. Such is the nature of intelligence work, according to those in the business.

The Other Argument For Gay Marriage

By David K. Shipler

Government has no business telling people whom they can marry. It’s as simple as that, and why most small-government Tea Partiers and other conservatives don’t see it is one of those vexing mysteries of hypocritical politics.

President Obama did not make that argument when he finally completed his circular “evolution” of 16 years and returned to where he had stood in 1996, when he had said, “I favor legalizing same-sex marriages.” Yesterday, he declared on ABC, “Same-sex couples should be able to get married.”

It seems that he has finally come around to accepting his own opinion. That’s what integrity looks like. Now let’s see if he can lead some of the Americans on the other side to accept it as well.

Terrorist Plots, Hatched by the F.B.I.

By David K. Shipler
(as published in The New York Times Sunday Review Apr. 29, 2012)

THE United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts.


But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.

Stop Local Immigration Enforcement

By David K. Shipler

The cleanest, most honest way to oppose Arizona’s draconian immigration law is not the way it’s being done in Wednesday’s oral argument before the Supreme Court. It would be to oppose all local police involvement in federal immigration enforcement, including two programs that have been expanded by the Obama administration. They have led to just the kind of error and profiling feared by critics of the Arizona statute.

But profiling is not on the Court’s agenda, although it’s been raised in amicus briefs. The question at this stage is one of federalism, whether federal immigration law implicitly preempts the states’ powers to legislate in this area. Congress included no claim of preemption in the relevant law, so it’s up to the justices to decide whether there is implied preemption, a concept not warmly embraced by states-rights conservatives.

That is an important constitutional issue. But for swarthy people with foreign accents, the more practical, everyday matter—which will surely be litigated if Arizona’s law is upheld—is the license given to local police departments to stop and question and detain people on the basis of hunches and guesses that translate into racial and ethnic profiling. Many of them may be U.S. citizens and legal residents.

Legalizing Drugs Would Bolster Constitutional Rights

By David K. Shipler

If Secret Service agents hadn’t infatuated the American press last weekend by cavorting with prostitutes in Colombia, there might have been space and time for newspapers and broadcasters to dwell on a more significant event that took place, also behind closed doors, at the Latin American summit. It was the discussion about partially legalizing narcotics to undermine the lethal drug cartels that have turned parts of the hemisphere into war zones.

This is not about to happen, obviously. As a politician in an election year, President Obama naturally rejected the idea. But the leaders—pushed by President Juan Manuel Santos of Colombia, President Felipe Calderon of Mexico, and President Otto Perez Molina of Guatemala—did order up a study by the Organization of American States. Desperation about drug violence has driven the decriminalization proposal to the highest levels of certain governments.

The arguments for and against legalization are familiar, but there is one in favor that has rarely been made: The war on drugs has also been a war on the U.S. Constitution, especially 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.”

Mike Wallace: The Question That Changed America

By David K. Shipler

It’s not often that a two-word question can shake a country’s self-regard as deeply as Mike Wallace’s to Private Paul Meadlo, the soldier he interviewed about the My Lai massacre.

“And babies?” Wallace asked.

“And babies,” Meadlo answered.

It was a pivot point in Americans’ downward trajectory of honor during the Vietnam War. Something snapped. The struggle to disbelieve the emerging story was now impossible to sustain. No longer was it inconceivable that a U.S. Army platoon had walked into a South Vietnamese hamlet on March 16, 1968, rounded up villagers, herded hundreds into a ditch, and gunned them down.

Long after 9/11: Plato’s Shadows

By David K. Shipler

I recently asked a class of undergraduate journalism students what they remembered about September 11, 2001, since most of them were only eight or nine at the time.

Nobody chose to answer except one young woman, who said that she remembered her parents’ reactions. She did not elaborate, but it seemed that what stayed with her, more than the scenes from lower Manhattan, were the faces and voices of her mother and father.

Inevitably, as generation supersedes generation, that clear and terrible morning will be interpreted through the country’s reactions.

Health Care: The Myth of Free Choice

By David K. Shipler
If the Supreme Court overturns the health care law, the best response would be to enact a single-payer system, possibly by expanding Medicare downward by age until everyone is covered: in other words, a tax-funded service that is clearly constitutional.

Democrats in Congress toyed with the idea, but it won’t happen, of course, because Republicans who don’t know what socialism is will scream, “Socialism!” Nor are we open to learning from other industrialized countries, which have fashioned an array of methods to finance and deliver medical care to their populations. Our pride in American exceptionalism seems to make us impervious to others’ experiences.

Therefore, as seems likely after today’s skeptical questioning by conservative justices, the United States will remain buffeted by a semi-private system that creates the illusion of free choice.

The Secret Service As Thought Police

By David K. Shipler

A case of security vs. speech, before the Supreme Court for oral argument today, may set important standards for law enforcement agents who make misjudgments in the heat of the moment. As usual on matters of civil liberties, the Obama Administration is on the wrong side.

Under President Obama’s predecessor, the Secret Service was mobilized to suppress political speech. To create glowing television portrayals of President George W. Bush wherever he spoke, White House staffers screened out people wearing anti-Bush T-shirts, had the Secret Service expel them from public presidential events, and even cruised parking lots looking for hostile bumper stickers so the cars’ occupants could be turned away once they reached the door. The Secret Service, which is supposed to protect the president from physical harm, protected him from political dissent as well, by instructing local police to restrict demonstrators to distant “free speech zones,” usually out of sight of both the president and the cameras.

The Permanent Emergency

By David K. Shipler

When President George W. Bush went outside existing law to fight terrorism, his unilateral, ad hoc measures were so lacking in authority as to be vulnerable to political pushback and constitutional challenge. They had a transitory quality, cobbled together hastily to address sudden danger. When he ordered the National Security Agency to ignore the Foreign Intelligence Surveillance Act and secretly monitor communications without warrants, when he declared prisoners enemy combatants who could be held indefinitely without lawyers or trials, and when he avoided Congress and established military tribunals on his own, he faced an uproar from both the left and the libertarian right, and the prospect of reversal in the courts.

But now, more than a decade after 9/11, most of the policies that once seemed so extraordinary have been codified in law and practice, and recently portrayed by Attorney General Eric Holder as permanent, justifiable features of the legal landscape. This sea change in the constitutional culture will be difficult to undo, and it may lead eventually to a harsh judgment by history.

Church, State, and Santorum

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.”

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

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.

A Lesson for Candidates

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.

The Tattered Safety Net

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.

Arresting the Witness Instead of the Criminals

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.

Imagining Terrorism: Bombs Not Nukes, Guns Not Germs

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 Silver Lining of Super PACs

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.

Obama Toys With the Constitution

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.