The Rights of the People

by David K. Shipler

  Chapter Eight, “Life, Liberty, and the Pursuit of Terrorists,” explores the latitude of the executive branch in prosecuting those accused of terrorism, the strengths and failures of the federal courts, the protection of classified evidence, the designation of Americans as enemy combatants, and the dangerous legacy of the Military Commissions Act, which authorizes a parallel judicial system wholly within the executive branch. The chapter offers illustrations of the state of mind that can corrupt investigators in a time of fear. The Epilogue considers the differences between democracy and dictatorship, reflecting on the importance of the constitutional structure in restraining officials who display behavior more typical in authoritarian systems.

  Woven into these chapters is the flow of legal history, for the present cannot be understood and the future cannot be envisioned outside the background of constitutional struggles that have gone before. The statutes and court opinions that trace the lines of liberty across the decades are the means of our hardships and our benefits, so it is worth knowing about them. Furthermore, every Supreme Court case is a human story. It decides a person’s fate. It also creates precedent for the next individual, and the next, and so on until the scope of rights is adjusted for all. This is the magic of the rule of law.

  As I researched, it became evident that to understand how constitutional rights are maintained and damaged, it helps to know something about the law and its mechanisms, just as in maintaining your car and listening to your mechanic, it helps to know something about internal combustion engines and how brakes work. So I’ve included some legal detail in this book, sufficient for better understanding.

  I am not an attorney. I have had no legal training, just informal teaching by numerous lawyers and judges in answer to my questions. The long learning process has brought me a certain understanding of the law, but the result has no pretensions of constitutional scholarship. It is a layman’s attempt to knit together legal and personal narratives that define the evolving limits of our constitutional protections. I have tried to give legal context to the human stories. If it informs lawyers as well as laymen, as it may, that’s to the good, and I’ve included extensive footnotes helpful to professionals. But the law is too important to be left to the lawyers, to paraphrase Georges Clemenceau about war and generals. We laymen know too little about our Constitution and think too superficially about its influence on the qualities of American life. Civic duty requires more.

  The best view of American freedoms may be from a country without them, as I learned in Moscow, where I lived for four years as a New York Times correspondent in the Soviet era of the 1970s. Devoid of the intricate balances and protections that preserve individual rights, the Soviet system sent many of my friends to prison camps and Siberian exile after sham trials for the mildest political dissent. The conforming population, cowed and conditioned, did not quite know what they were missing, just as many Americans don’t see clearly what they have. The clarity I gained there about the mechanisms that preserve our rights helped guide me through this project, so I occasionally use the Soviet Union as a method of illumination. I wish those who made policy in post-9/11 Washington had spent time in Moscow.

  There are many ways to honor America. This book is mine. I have completed this journey of self-education in the belief that the most terrifying possibility since 9/11 has not been terrorism—as frightening as that is—but the prospect that Americans will give up their rights in pursuing the chimera of security.

  ACKNOWLEDGMENTS

  So many skilled attorneys displayed so much generosity to educate me in the law that if their time had been reckoned in billable hours, it would have cost a small fortune. They talked with me in person, by phone, and by e-mail, and sent me volumes of indictments, briefs, motions, and rulings to document my work. They answered my uninformed questions with precision and patience. Many who deserve gratitude are mentioned in the text, but others contributed much more than their brief appearances in the book suggest, so they are named here.

  My friend David Tatel, a federal appeals court judge, opened doors to valuable people on the bench and in the bar, helped me understand aspects of the law and the Constitution, and provided useful comments on drafts of chapters. A. J. Kramer, the Federal Public Defender in Washington, D.C., kindly lent me an office, where I spent many weeks learning from him and his crew of superb lawyers, poring over case records, attending motion hearings and trials, and watching the Bill of Rights play out where it matters most acutely—in the criminal courts. Kramer also read part of the manuscript to check facts and give feedback. Assistant public defenders Tony Axam, David Bos, Beverly Dyer, Neil Jaffee, Jonathan Jeffress, Tony Miles, Shawn Moore, Michelle Peterson, Mary Petras, Lara Quint, Gregory Spencer, Robert Tucker, and Carlos Vanegas spent considerable time leading me through the complexities of criminal law. Other helpful defense attorneys included Whitney Boise, James Brosnahan, Frank Dunham, Richard Foxall, Steve Kalar, Larry Kupers, Bob Luskin, Jerome Matthews, James McCollum, Andrew Patel, Gregory L. Poe, Barry Portman, Jay Rorty, Elden Rosenthal, Marc Sussman, Bryan Stevenson, and Kristen Winemiller. Most prosecutors and some judges, except those named in the text, preferred anonymity, so my thanks to them must remain private.

  William B. Wiegand, an assistant U.S. attorney, patiently explained legal issues on many occasions over the years, referred me to relevant case law, and introduced me to D.C. police officers who allowed me to accompany them as they went on operations. Sergeant G. G. Neill (now retired), Sergeant J. J. Brennan, and the men and women of their gun and narcotics units, respectively, were welcoming and open, providing me with a rare window into police work on the streets. My observations and conclusions are entirely my own, however. Neither the officers nor the others who assisted me should be held responsible for anything I have written, with which they may or may not agree.

  Anthony Lewis and David Cole oriented me at the outset, offering overviews of important issues. Kenneth Ballen, Ann Beeson, Michael Bromwich, Alan Davidson, Mary Holper, Jameel Jaffer, Joe Onek, Paromita Shah, Judge Scott Vowell, and James Woodford helped with contacts, cases, and insights, as did many others who are cited in this book. Alan Hirsch, an expert on confessions, read several chapters and offered helpful feedback. Joe Polski, chief operations officer of the International Association for Identification, graciously provided FBI reports on fingerprint misidentification. Martha Gies put me in touch with relatives of some of the Portland Seven.

  For police and other government documents, I relied heavily on those obtained in lawsuits by the American Civil Liberties Union under the Freedom of Information Act. The ACLU was also a treasure trove of information on current constitutional cases being litigated around the country. Details on various rights violations that did not always reach court were accessible through the First Amendment Center, the Constitution Project, and the libertarian Cato Institute. My friend David Burnham provided data on various issues through TRAC, the Transactional Records Access Clearinghouse, which processes digital records it obtains—usually against great resistance—from the federal government. Of the many fine books I used to educate myself, two stood out as especially helpful: David M. O’Brien’s Constitutional Law and Politics and Geoffrey R. Stone’s Perilous Times. The reporting on warrantless surveillance by Eric Lichtblau and James Risen of The New York Times, which exposed a major violation of the Fourth Amendment, threw light on the shadowy end of the continuum of abuse. Jane Mayer’s articles for The New Yorker and her probing book The Dark Side helped open the scourge of torture to public view. My epilogue’s title, “The High Court of History,” comes from a speech by John F. Kennedy to a joint convention of the General Court of Massachusetts on January 9, 1961.

  All people in this book are real. There are no composite characters, a device I deplore, and all who were willing are identified. Actual names are used except for those few clearly labeled as pseudonyms or nicknames, sometimes with quotation marks around them on first reference. Many of the notes at the end of the boo
k explain the law or describe the case beyond simple sourcing, and those whose superscript numbers in the text are italicized contain significant elaboration.

  My agent, Esther Newberg, and my longtime editor, Jonathan Segal, have been unfailingly supportive and helpful during this extended project. Jonathan’s criticisms and suggestions have improved the book. So have the comments and insights of my son Michael Shipler and my wife and toughest editor, Debby Shipler, both of whom read the entire manuscript and gave me sound advice, as always.

  Finally, I owe thanks to my seminar students at Dartmouth, where I taught in 2003. Their research under the rubric “Civil Liberties in a Time of Terrorism” helped sharpen my thinking and illuminate the landscape I was beginning to travel. When I asked them on the last day of class to summarize their thoughts about Americans and their rights, Elliot Olshansky quoted Dylan Thomas: “Rage, rage against the dying of the light.”

  CHAPTER ONE

  Saving the Constitution

  As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air, however slight, lest we become unwitting victims of the darkness.

  —Justice William O. Douglas

  THE STATE RELIGION

  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 handwritten 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.

  In the rotunda of the National Archives in Washington, D.C., hushed and calmed in the dim glow of a dusky light, the sacred documents are laid out as if on an altar, with the Constitution’s four enormous pages in the center, flanked on the left by the Declaration of Independence and on the right by the Bill of Rights, its script now faint and barely legible.

  That these faded marks on the parchment’s surface have reached so deeply into the human experience makes this a place of pilgrimage, inspiring a worshipful mood. If America has a state religion, as the historian Robert Kelley used to say, it is constitutional democracy. Among all the rancorous arguments in the American landscape, no call to abandon the Constitution can be heard. Across the entire sweep of the political and social spectrum, no rejection of the Constitution can be seen. No threat to the nation, no fear of insecurity has been enough to provoke such apostasy. Instead, every departure from constitutional principles has been excused, rationalized, or justified by assertions that the Constitution is actually being observed—that the document awards or withholds powers, that it permits or prohibits or requires, that its meanings derive literally from its authors’ original intent, or that its provisions transcend the bonds of history. The Constitution is reinterpreted and sometimes stretched grotesquely, but no political actor so far has had the brazen arrogance to discard it explicitly.

  Indeed, the Constitution is still being discovered. Like any holy text, this one is what its followers need it to be. It is malleable but not equivocal, principled but not brittle: It can bend without breaking. The rights it enshrines are fundamental but not absolute, and they expand and contract as they are debated and rethought with time and circumstance. The Constitution’s pages may be embalmed in argon, but its ideas live and breathe the same air that we citizens do.

  Those ideas have proven greater even than the men who put them on paper, men who could be small and parochial in their mutual suspicions and partisan bickering. The liberties they originally inscribed, in an era when women had no vote and blacks were enslaved, continue to awaken values and sensibilities that our national ancestors did not imagine.

  The framers, state delegates to the Constitutional Convention in the sweltering Philadelphia summer of 1787, were fairly young men for the most part who championed rights mainly for themselves and their kind—for propertied males of their race. Yet the seed they planted could not be contained. It was too brilliantly conceived, and so it grew and spread beyond the confines they envisioned.

  Jealously holding the powers of their respective states and suspicious of the central authority they were creating, the framers deftly divided the government against itself, with each of three branches checking and balancing the others. This avoided placing liberty’s fate in the hands of individuals, for as James Madison observed at the Constitutional Convention, “All men having power ought to be distrusted to a certain degree.”1

  The framers built the constitutional structure on a critical concept: the assumption that individual rights exist as a natural condition, that government cannot bestow rights on the people, for the people already possess them. They are the people’s to relinquish in careful measure as they choose. So basic was this conviction that the delegates saw no need to codify the people’s rights, and they adjourned the convention without doing so. It was considered sufficient to include the venerable principle of habeas corpus (literally, “you have the body”), by which a prisoner could petition a court for a writ to summon his jailer to defend and justify the incarceration.

  This right, with roots in Anglo-Saxon common law predating the Magna Carta of 1215, was regarded by Madison and others as an impregnable shield of liberty. No other rights needed enumerating. If no jailer could keep a person without the oversight of an independent court, it was believed, autocracy was thwarted. So the framers made sure that access to the “Great Writ,” as it is known, could not be curtailed lightly. “The Privilege of the Writ of Habeas Corpus shall not be suspended,” they wrote in Article I of the Constitution, “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

  Relying on habeas corpus was not enough for those in the political class who were apprehensive about governmental abuse of power. Evangelical Christian voters demanded from Madison, a candidate for Congress, support of an amendment protecting religious freedom by separating church from government.2 Only later, mainly as a price of ratification demanded by the states, did the Bill of Rights, the first ten amendments, strike the great chords of liberty that have reverberated for more than two centuries.

  This was accomplished with a distinctive choice of words. In many other constitutions, governments give rights; in the United States Constitution, the people do the giving, by retaining their rights and granting government limited powers. In the First Amendment, Congress does not award the people freedoms of religion, speech, assembly, and the press. Rather, “Congress shall make no law … abridging” those existing rights. Government does not magnanimously donate the right to be secure against “unreasonable searches and seizures” in the Fourth Amendment. Instead, “The right … shall not be violated.” The most positive forces in the Constitution are the negatives.

  Every constitutional right has been kindled by its violation. That men could torture other men
to extract confessions led to the Fifth Amendment’s guarantee that no person “shall be compelled in any criminal case to be a witness against himself.” The writs of assistance issued by the British as blanket authorizations for unlimited searches led to the Fourth Amendment’s ringing declaration of “the right of the people to be secure in their persons, houses, papers, and effects.” Religious persecution, both in England and America, generated the First Amendment’s ban on any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” Our liberties are rooted in their opposites: the separation of powers in the autocracy of monarchs, freedom of speech and the press in censorship, the right to counsel and due process in the Star Chamber of the sixteenth and seventeenth centuries.3*

  The framers built a bold bulwark against ingenious methods of oppression, and were driven not only by the violations on American soil under British rule but also by long patterns of action and reaction in England itself. They tended to see the abuse of rights in America as a deviation from British principles, unfaithful to English tradition. They honored English common law—that largely unwritten body of rules and precepts that had taken on the weight of custom and consensus in the absence of a written constitution. As codified and explained by Sir William Blackstone, a British judge who published his Commentaries on the Laws of England the decade before the American Revolution, common law remains an underlying presence in the contemplations of American lawyers and judges today, a complement to constitutional provisions, statutes, regulations, and the detailed court opinions that make up judicial precedent. A statue of Blackstone stands in a square near the U.S. Supreme Court.

  To a degree, then, the framers’ work on the Constitution represented an effort to revive the liberties embedded in the legal heritage of England, and much of that legacy came down intact into the founding documents. More than half a millennium before, in reaction to abuses by King John, the Magna Carta had outlawed forced and false confessions by providing that “in future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” The same goal was adopted by the Fifth Amendment. The 1689 English Bill of Rights, which placed the monarchy under the rule of parliamentary law, contained a ban on “excessive bail,” “excessive fines,” and “cruel and unusual punishments.” Those exact words were carried into the Eighth Amendment a century later.