The Rights of the People

by David K. Shipler

  Perhaps shamed by the spectacle it was making of itself, the army finally abandoned the prosecution and settled for Yee’s departure from the service. The free press, the cleansing sunlight of publicity, had opened an escape never available to Kopelev in the Soviet Union’s closed system of thinking.

  The two men were both minorities: Yee a Chinese-American convert to Islam, and Kopelev a Jew, and so their superiors on each side saw them as standing apart, outside the patriotic mainstream. As a Jew, Kopelev was berated by a confused Soviet general: “How can you love the Germans? Don’t you know what they’ve been doing to the Jews?” The general then reminded him of an axiom of war: “To pity the enemy is to betray your own.”

  Six decades later, American officers with narrow experience in the world grew suspicious over Yee’s daytime prayers with Muslims and his explanatory lectures on the prisoners’ religious culture. A junior security officer thought him overly sympathetic, as did Guantánamo’s General Geoffrey Miller, who later gained infamy as commander of the abuse-ridden Abu Ghraib prison.10 As Yee recalled: “One of the initial allegations made against me was, ‘Who does this Chinese Taliban think he is, telling us how to treat our prisoners?’ ”11

  Both Yee and Kopelev wrote memoirs about their experiences, and both were published in the United States. Kopelev’s could not appear in the Soviet Union, which was closed to its own history.

  Having known Kopelev well during my years in Moscow, and after two long interviews with Yee, I was struck by how similarly they described their commanders’ and persecutors’ anxieties and fantasies. The Communist Party was internationalist in name only. In reality, it served as a repository of Russians’ complexes about the outside world, especially the West: mixed feelings of inferiority and superiority, resentment and envy, curiosity and chauvinism, all producing impulses of suspicion toward fellow citizens who registered too much interest in things non-Soviet. In that insular universe, Jews looked somewhat alien, therefore untrustworthy, and associations with foreigners raised dark questions of disloyalty. The toxic paranoia reached its height under Stalin, and ebbed but did not disappear as the Soviet Union headed toward collapse.

  In milder form, Islam, Arabs, and the Muslim world have played the same role for some Americans, but within a system known for its fragmented power, diverse attitudes, and a scattered ethnocentrism that does not usually shape government policy. Accordingly, five or six years after the persecution of Yee, a different military subculture—medicine and psychiatry—failed to sound an alarm when Major Nidal Malik Hasan, an army psychiatrist, preached the Koran inappropriately at grand rounds, corresponded with a radical imam by e-mail, and worried colleagues with remarks of concern about Muslim Americans fighting Muslims in Iraq, all danger signs much clearer than anything done by Yee. It seemed that the pendulum of vigilance had swung to the opposite extreme, at least in the milieu of the Walter Reed Army Medical Center. Hasan later killed thirteen at Fort Hood in Texas.

  The Yee and Hasan episodes together illustrate how far from an autocracy America remains. It might seem pointless and offensive, then, to speak of the old Soviet Union and the United States in the same breath, the structures are so at odds with each other. The only similarities are in the attitudes of certain officials and citizens, and those are worth some attention.

  Uncomfortable reminders of Soviet thinking kept cropping up in the United States during the post-9/11 era. Periodically I checked my impressions with Americans who had also lived in Moscow as diplomats or correspondents, and with Russians who had grown up there and emigrated. Usually they nodded and agreed that they recognized some of the symptoms of the autocratic mind-set, while also recognizing the vast differences between the systems.

  Much of the behavior has been written about in these pages and elsewhere. Bush administration lawyers, who interpreted statutes to suit the government’s programs of torture and warrantless surveillance, manipulated the law as adroitly as Kremlin officials once constructed façades of legal-looking procedures for trying dissidents. The purposes were the same: to facilitate the machinations of the state. So in Washington, the rule of law was suspended at times, as it was all the time in Moscow.

  Both right-wing American ideologues and left-wing Soviet ideologues believed fervently in expansive executive power against weak legislative and judicial branches. Executive-branch dominance was pressed by Bush officials who evaded Congress and the courts, and Kremlin officials kept authority away from the supine legislature (the Supreme Soviet) and the judges who rendered “telephone justice.”

  In certain periods, the Soviet regime also spun and suppressed science for political aims, and Republican officials tried as much during the Bush administration, censoring studies on global warming, stacking committees and research programs to achieve desired results, and putting conservative social policy ahead of scientists’ recommendations on certain regulations.12

  Russians were screened for political orthodoxy before placement in significant jobs. Bush apparatchiks did the same, politicizing agencies of government from the Food and Drug Administration to the Department of Education and the Justice Department’s Civil Rights Division. As litmus tests, applicants were asked ideologically charged questions: “What is it about George W. Bush that makes you want to serve him?” “Tell us about your political philosophy,” whether you’re a “social conservative, fiscal conservative, [or] law and order Republican.” The options did not include liberal Democrat or even libertarian conservative. These inquiries were put to candidates for law-enforcement and policy-making positions at the Justice Department by a devout conservative in her twenties, Monica Goodling, a graduate of Messiah College and of the evangelist Pat Robertson’s Regent University School of Law. “Aside from the President, give us an example of someone currently or recently in public service who you admire,” she would say, requesting the name of a favorite Supreme Court justice or legislator. She asked applicants about their positions on abortion and their voting histories, issues irrelevant to the work they would do. Candidates were also helped by belonging to the Federalist Society, a highly organized movement of conservatives (including libertarians) skilled in recruiting law students and mentoring them into legal positions and judgeships.13 In the narrow world of politicized hiring, membership became a key credential.

  This was a reminder that during Soviet days, membership in the Communist Party had been a prerequisite for many influential jobs, including factory manager, hospital director, history professor, and journalist. The party was exclusive, however, embracing only a small percentage of the population. Komsomol, the Communist Youth League, had much broader coverage, grooming virtually all Soviet citizens from their school years upward. Without that membership card, early careers were stymied, which was devastating in a system where government owned virtually everything, from restaurants to coal mines.

  The Federalist Society is not Komsomol or the Communist Party, of course. Nothing in any of these comparisons is exactly the same. Not all members of the Federalist Society think alike, and they certainly aren’t afraid to speak their minds. But they do tend to cluster around a like-minded ideology, and their doctrinal purity drives their organizing efforts. Komsomol was virtually mandatory and all-inclusive; the Federalist Society is optional and self-selective. Komsomol and the party tolerated no competitive ideas outside their own; the Federalist Society stands as one choice among a multitude of ideas and associations across the American spectrum. But there’s no avoiding the hard fact that when membership in an ideological movement is used to ensure political conformity in government hiring, the culture of political pluralism is damaged, and so is governmental expertise. The Bush administration’s filtering produced immigration judges with no experience in immigration law, regulatory officials without expertise in their areas of responsibility, and a Coalition Provisional Authority to run Iraq that was populated with young Republican zealots who were politically safe and professionally impaired. The disastrous results were well docume
nted.

  Enforcing “political correctness” (an old communist term), absolutists of all stripes legitimize only a single way of thinking, exclude those who deviate, and discredit their opponents with propaganda. These were hallmarks of Soviet methodology, which also included imprisonment and exile. More play entered the Soviet system in later years, but for most of its history, the apparatus removed or destroyed anyone who disagreed, all the way up to the Politburo. In milder form, Bush ideologues attempted that as well, successfully at times.

  My colleague Christopher Wren in the New York Times Moscow bureau used to feel a sense of déjà vu about the bullying KGB and Communist Party officials he encountered: They reminded him of Southern segregationists he’d covered during the civil rights movement. Soviet authorities did not appreciate the analogy, just as hard-right Republicans will not applaud the ones I’m making here. But I’m not the first to note the circular nature of the political spectrum, a line whose extreme ends, left and right, are bent around until they meet at a place where they share some unattractive traits: an unyielding sense of certainty that they have a monopoly on truth, and a raging intolerance of those who differ. It’s not hard to find these characteristics in the United States today.

  In the American system, though, it’s not easy to convert intolerance into government fiat. Soviet Communists were in tune with Russian history, but right-wing radicals are at odds with American history. They resemble each other in their ways of thinking, not in what they can do.

  The Soviet structure subordinated the individual to institutions, and so would extreme American conservatives—despite their rhetoric to the contrary—by means of activist judges on the right, enhanced corporate powers, expanded police authority against crime, and extralegal tactics of counterterrorism. Consider how readily some Republican politicians would turn off the constitutional protections of civilian courts and put terror suspects—even those arrested inside the United States—into the hands of military interrogators and military commissions. That’s where they wanted to see the Nigerian who tried to blow up a plane over Detroit in 2009, and they railed against President Obama for respecting his rights and trusting a criminal justice system based on the framers’ principles. On both the Soviet left and the American right, policy did and does pivot on national security, which rationalizes practically every abuse and musters a crude patriotism against dissent. Like some Americans, Soviet Communists valued conformity of opinion and feared the disorder brought by liberty.

  The opposite approach, embracing the risks of robust freedom, might be called courage. “Those who won our independence by revolution were not cowards,” Justice Louis Brandeis wrote years ago: “They did not fear political change. They did not exalt order at the cost of liberty.”

  This conclusion is not a prediction, then, just a note of caution. Although we’re certainly not becoming Soviet, when we see occasional traits of a dead dictatorship we relearn the fundamental lesson bequeathed by the framers: that liberty cannot rest only on the goodness of transitory officials and leaders, whoever they may be, but relies on a durable foundation of constitutional protections. Those protections need defending. Rights that are not exercised are lost. Some have been diminished not only under the chisel of the courts but also by the neglect of ordinary citizens who neither invoke them nor challenge their violators.

  The Supreme Court has failed too frequently. It often divides along the lines of political allegiance rather than constitutional analysis, cheapening itself. Most justices don’t grow and evolve into their awesome powers, but rather freeze themselves in place, wherever they began, as if they had a lifetime appointment to honor whatever political constituency placed them on the bench. They would honor the country by respecting the observation of Justice John Paul Stevens: “Learning on the job is essential to the process of judging.”14 Under Chief Justice Roberts, the high court has grown less attentive to the precious rights of the small and the weak, more eager to strengthen the already strong. Therefore, our rights are less robust than they were a decade ago, and may be even less so a decade hence.

  Yet eventually it will be the judgment of the high court of history that matters. The decision will be favorable if we nurture our checks and balances, if we push back hard to maintain our constitutional liberties, empower the powerless, and recognize that the rights of the lowliest criminal are not his alone. They belong to us all.

  NOTES

  CHAPTER 1: SAVING THE CONSTITUTION

  1. Transcript, Madison Debates, Constitutional Convention, July 11, 1787, the Avalon Project, Lillian Goldman Law Library, Yale Law School, http://avalon.law.yale.edu/18th_century/debates_711.asp.

  2. Steven Waldman, Founding Faith (New York: Random House, 2008), pp. 142–44.

  3. “When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. The framers wanted to do away with this prohibition.” Judge Richard A. Posner, “Overcoming Law,” at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp

  .html.

  4. David Cole, interview with author, June 24, 2003.

  5. Thomas Jefferson, The Works of Thomas Jefferson, Vol. 12, ed. Paul Ford (New York: G. P. Putnam’s Sons, 1904–1905), pp. 137–38. Cited in David M. O’Brien, Constitutional Law and Politics, Vol. 2, Civil Rights and Civil Liberties (New York: Norton, 2003), p. 30.

  6. Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803).

  7. To the dismay of some legal scholars, it has been the due process clause rather than the guarantee of “privileges and immunities” that has governed the application of the Bill of Rights to the states. That has worried some rights advocates who see a prospect that “due process” could someday be interpreted literally and narrowly enough, as Justice Antonin Scalia has indicated he would like to do, to undermine the incorporation of some amendments into rights at the state and local levels. See Robert Barnes, “Gun Case Presents Quandary for Court,” Washington Post, March 1, 2010, p. A1.

  8. Gitlow v. New York, 268 U.S. 652 (1925).

  9. Near v. Minnesota, 283 U.S. 697 (1931).

  10. Brown v. Mississippi, 297 U.S. 278 (1936).

  11. Wolf v. Colorado, 338 U.S. 25 (1949).

  12. Malloy v. Hogan, 378 U.S. 1 (1964).

  13. Mapp v. Ohio, 367 U.S. 643 (1961).

  14. Gideon v. Wainwright, 372 U.S. 335 (1963).

  15. Miranda v. Arizona, 384 U.S. 436 (1966).

  16. Duncan v. Louisiana, 391 U.S. 145 (1968).

  17. David McCullough, John Adams (New York: Simon & Schuster, 2001), p. 504.

  18. 50 U.S.C. § 21, which reads in part: “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”

  19. Sedition Act, approved July 14, 1798, § 2.

  20. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: W. W. Norton, 2004), p. 19.

  21. A collection was taken up to pay his fine. Contributors included Thomas Jefferson, James Madison, and James Monroe. Stone, Perilous Times, pp. 18, 50–52.

  22. Thomas Jefferson, First Inaugural Address, March 4, 1801, the Avalon Project at Yale Law School, http://avalon.law.yale.edu/19th_century/jefinau1.asp.

  23. An antiwar politician, former Congressman Clement Vallandigham, was charged with “treasonable utterances” for saying that the “wicked, cruel, and unnecessary” war was being waged “for the freedom of the blacks and the enslavement of the whites.” Stone, Perilous Times, p. 82.

  24. Stone, Perilous T
imes, pp. 84–86, 124, and Ex parte Merryman, 17 F. Cas 144 (D. Md. 1861), in which Taney sat as a Circuit Court judge of the Maryland District.

  25. Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7. The Hawaiian Organic Act of 1900 authorized the governor of Hawaii to suspend habeas corpus in case of rebellion or invasion. Ch. 339, § 67, 31 Stat. 153. In 1902, Congress authorized a suspension by the governor of the Philippines, who invoked it in 1905 for nine months. Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691.

  26. Ex parte Milligan, 71 U.S. 1 (1866). The Chase Court, 1864–1873, the Supreme Court Historical Society, http://www.supremecourthistory.org/02_history/subs_history/

  02_c06.html, and Ex Parte Milligan: Trials in Wartime, American Bar Association, Key Supreme Court Cases, http://www.abanet.org/publiced/youth/sia/holtcases/milligan.

  html.

  27. Stone, Perilous Times, p. 137.

  28. 40 Stat. 553.

  29. David Cole, Enemy Aliens (New York: New Press, 2003), p. 112–13.

  30. Vartan Gregorian, “The Relevance of Academic Freedom,” Herbert Gutman Memorial Lecture, CUNY Graduate Center, Oct. 15, 2002.

  31. Peter H. Buckingham, “ ‘Red Tom’ Hickey and the Suppression of the Texas Rebel,” unpublished paper. On post-Reconstruction slavery using convicts, see Douglas A. Blackmon, Slavery by Another Name (New York: Doubleday, 2008).

  32. Stone, Perilous Times, p. 224.

  33. Conversation between Goering and U.S. Army Captain G. M. Gilbert on Apr.18, 1946, quoted in Edward Dolnick, The Forger’s Spell (New York: HarperCollins, 2008), p. 80.