Rights at Risk: The Limits of Liberty in Modern America (Vintage)
Page 1
ALSO BY DAVID K. SHIPLER
The Rights of the People:
How Our Search for Safety Invades Our Liberties
The Working Poor: Invisible in America
A Country of Strangers: Blacks and Whites in America
Arab and Jew: Wounded Spirits in a Promised Land
Russia: Broken Idols, Solemn Dreams
THIS IS A BORZOI BOOK
PUBLISHED BY ALFRED A. KNOPF
Copyright © 2012 by David K. Shipler
All rights reserved. Published in the United States by Alfred A. Knopf, a division of Random House, Inc., New York, and in Canada by Random House of Canada Limited, Toronto.
www.aaknopf.com
Knopf, Borzoi Books, and the colophon
are registered trademarks of Random House, Inc.
Grateful acknowledgment is made to the following for permission to reprint previously published material: John E. Reid & Associates. Excerpts from various online Investigator Tips at http://www.reid.com/.
Reprinted by permission of John E. Reid & Associates.
Vladimir Bukovsky. Excerpts from “Torture’s Long Shadow,” Washington Post, Outlook, Dec. 18, 2005. Reprinted by permission of Vladimir Bukovsky.
Library of Congress Cataloging-in-Publication Data
Shipler, David K., date.
Rights at risk : the limits of liberty in modern America / David K. Shipler.
p. cm.
Includes bibliographical references.
eISBN: 978-0-307-95762-7
1. Civil rights—United States—History. 2. Liberty—United States. I. Title.
KF4749.S525 2012
342.7308′5—dc23 2011034754
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v3.1_r2
For Madison, Ethan, Benjamin, Kalpana, Dylan,
and those of their generation yet to come
In a free society, some are guilty, but all are responsible.
—Abraham Joshua Heschel
CONTENTS
Cover
Other Books by This Author
Title Page
Copyright
Dedication
Epigraph
THE BILL OF RIGHTS
PREFACE
INTRODUCTION: The Insolence of Office
CHAPTER ONE: Torture and Torment
Body and Mind
Chicago
Humane Torture by the CIA
The Right to Silence
Confession Abroad, Trial at Home
CHAPTER TWO: Confessing Falsely
Between Truth and Illusion
The Central Park Jogger
Human Lie Detectors
The Law Slips Backward
Manipulating Miranda
Remedies
CHAPTER THREE: The Assistance of Counsel
Proving Innocence
Location, Location, and Location
Conflicts of Interest
Mitigating Evidence
Without Representation
CHAPTER FOUR: The Tilted Playing Field
The Power of the Prosecutor
The Plea Bargain
The Sentence
Revoking Probation and Forfeiting Assets
CHAPTER FIVE: Below the Law
The Trapdoor
Narrow Escapes
Orphaned
The Ashcroft Sweeps
Unintended Consequences
The Pursuit of Happiness
CHAPTER SIX: Silence and Its Opposite
Mightier Than the Sword
Simply Out of Fear
Symbolic Speech
Small Violations of Large Principles
Punishing Without Prosecuting
CHAPTER SEVEN: A Redress of Grievances
Decorum and Dissent
Police Surveillance
Spies in New York
Zoning Out Free Speech
When Rights Clash
CHAPTER EIGHT: Inside the Schoolhouse Gate
Tinker’s Armband
Tolerating Intolerance
Erosion
Professors and Their Discontents
Security and Insecurity
Beyond the Gate
EPILOGUE: The Constitutional Culture
NOTES
A Note About the Author
THE BILL OF RIGHTS
FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
SECOND AMENDMENT
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
THIRD AMENDMENT
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
FOURTH AMENDMENT
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
FIFTH AMENDMENT
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
SEVENTH AMENDMENT
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
EIGHTH AMENDMENT
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
NINTH AMENDMENT
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
TENTH AMENDMENT
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
PREFACE
The people in these pages stand where the Bill of Rights meets everyday America, from the courtroom to the cl
assroom. They benefit when the Constitution is upheld and suffer when it is evaded. Most of their names will not be familiar, because these citizens and aspiring citizens are typically violated invisibly, well below the radar of public attention. For many of them, losing their rights may be tragically momentous, but few of their cases are landmarks. They shape the constitutional culture imperceptibly, accumulating only gradually into trends and patterns. My task here is to throw light on those shifting patterns of liberty.
This book may lead readers to their own verdicts on the guilt or innocence not only of criminal defendants but also of those who interrogate and prosecute them, and even represent them. Wherever a person’s freedom is balanced on a fine edge, the state itself may be culpable or virtuous. In the ranks of the guilty and the innocent there stand not only immigrants but also officials who deport them, not only political protesters but also police who arrest them, not only dissenting schoolchildren but also principals who suspend them for their speech.
I have tried here to portray the law in human terms and to see the human stories in the context of the law. I am not an attorney, so I owe much to the generosity of defense lawyers, prosecutors, and judges who taught me what they could about the Constitution, the courts, and the law. They answered myriad questions, provided volumes of documents, and made themselves available for multiple consultations. Those who deserve thanks beyond what I could offer in the text are named here.
David Tatel, a friend and federal appeals court judge, put me in touch with well-informed judges and lawyers, educated me on the law and the Constitution, and made helpful suggestions on drafts of chapters. A. J. Kramer, the federal public defender in Washington, D.C., gave me an office and weeks of access to his team of skilled attorneys, who discussed cases, took me to hearings and trials, and helped me see firsthand the elements of the Bill of Rights most seriously at risk. Kramer provided feedback and fact-checking on parts of the manuscript.
The 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 were immensely generous in guiding 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, Bryan Stevenson, Marc Sussman, and Kristen Winemiller. William B. Wiegand, an assistant U.S. attorney, expertly answered legal questions about asset forfeiture and other issues, making me the beneficiary of his precise thinking and extensive knowledge. Most prosecutors and some judges preferred anonymity, so my gratitude to them has to remain private.
Anthony Lewis and David Cole offered initial orientation on key issues. Ann Beeson, Jameel Jaffer, Joe Onek, Judge Scott Vowell, and James Woodford helped with contacts, cases, and insights, as did many others who are cited in the book. Alan Hirsch, an expert on confessions, read several chapters and offered useful critiques.
I was assisted and advised on immigration issues by Adem Carroll, Mary Holper, Sin Yen Ling, Bryan Lonegan, Rachel Meeropol, Tram Nguyen, Debi Sanders, Paromita Shah, Nicole Siegel, and Jesse Wing, among others. Adem Carroll kept me abreast of developments and helped arrange interviews with immigrants in New York and overseas. Debi Sanders invited me to accompany her group of pro bono lawyers on prison visits. In multiple conversations, Mary Holper and Paromita Shah explained the law’s intricacies and read a draft of the immigration chapter, providing comments and corrections. Lisa Faeth spent many hours offering documents, notes, and explanations about the case of her friend Waheeda Tehseen.
My analyses and viewpoints are my own, however. None of those who provided insights and contacts should be seen as endorsing what I have written, with which they may or may not agree.
I made extensive use of government documents obtained by the American Civil Liberties Union (ACLU) under the Freedom of Information Act and various lawsuits; the documents were valuable in assembling an account of police surveillance of protest groups before the 2004 Republican convention in New York. The ACLU, the Cato Institute, the Constitution Project, and the First Amendment Center were important sources on cases under litigation. My friend David Burnham gave me data on immigration enforcement through TRAC, the Transactional Records Access Clearinghouse, which analyzes digital information from government agencies. John Conroy’s investigations published in the Chicago Reader were indispensable in recounting cases of torture by the Chicago police. Among the books I found most useful in understanding the development of case law on various issues were David M. O’Brien’s Constitutional Law and Politics and Geoffrey R. Stone’s Perilous Times. Jane Mayer’s incisive reporting in her book The Dark Side provided details on torture by the United States.
I owe gratitude to others for a few titles and for one phrase. I first heard the line “the power to listen,” which appears in Chapter Seven, from a young Rwandan woman who had seen her father slaughtered and then spent many years gathering the strength to facilitate trauma-healing workshops. She described herself as finally attaining the power to listen. The title of the Introduction, “The Insolence of Office,” comes from Shakespeare, Hamlet, act 3, scene 1. The title of Chapter Five, “Below the Law,” was written by my daughter, Laura Shipler Chico, to name a case in her book, Assisting Survivors of Human Trafficking: Multicultural Case Studies.
All people in this book are real. I deplore the creation of composite characters, so there are none here. All who were willing are identified. The notes at the end of the book that go significantly beyond simple sourcing in their explanations of the law or their descriptions of the cases are indicated by underlined superscripts in the text.
Esther Newberg, my agent, and Jonathan Segal, my editor, have been enthusiastic and loyal supporters during the many years of research and writing. Lydia Buechler at Knopf has expertly overseen the meticulous copyediting. My son Michael Shipler and my wife, Debby Shipler, read the manuscript perceptively and improved it with their critical and candid suggestions.
The epigraph at the beginning of this book was written by Abraham Joshua Heschel as an indictment of the entrenched system of racial segregation against which he marched with Martin Luther King Jr. Yet the words rise majestically above the particular, calling everyone to duty.
INTRODUCTION
The Insolence of Office
Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.
—Thomas Paine, Common Sense, 1776
ON JULY 11, 1787, as the Constitutional Convention debated how to determine apportionment in the House of Representatives, James Madison spiced up a dense discussion with several pointed warnings about governmental authority. The question was whether to trust the House itself or to impose the constitutional requirement of an impartial census every decade. “All men having power ought to be distrusted to a certain degree,” Madison declared. He spoke of “the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest.”1*
In the end, the census was chosen to deny House members control over the composition of their own body. It was one of many precautions that have come down to us in the Constitution’s separation of powers and in the Bill of Rights, whose provisions were designed to restrain government from trampling on people’s liberties.
Yet people remain vulnerable. They do not play on a level field against a potent executive branch. Their constitutional rights are routinely overwhelmed, largely out of sight in criminal courts, where few citizens go to watch; in police interrogation rooms, where the public is not allowed; in the closed offices of prosecutors and immigration bureaucrats; and in schools whose authorities show the next generations of Americans that elements of the Bill of Rights can be suspended, evaded, or ignored. This does not happen everywhere
all the time, but often enough to damage the constitutional culture. On their way to jail, to deportation from the country, or to expulsion from school, those who confront the muscle of the state frequently see their rights bruised, their liberties wounded. This book is about some of those people. Therefore, it is about all of us.
When compared with other high-income countries, the United States does poorly in limiting governmental powers—only ninth in a field of eleven selected by the World Justice Project for its Rule of Law Index—behind Sweden, the Netherlands, Australia, Austria, Japan, Canada, Spain, and France. Among seven countries of Western Europe and North America, the United States is ranked last.2
This seems surprising, since the framers were intensely wary as they created a federal government. With the excesses of British colonialism fresh in their minds, they hobbled the new regime with checks and balances among three branches and circumscribed it with the venerable right of habeas corpus, which allows anyone arrested the right to summon his jailer to court to justify the imprisonment. That was enough to forestall arbitrary rule, the convention delegates believed, and they wrote the Constitution on the assumption that government would have no power that was not expressly given by the people.