Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  The first two chapters consider violations by the United States. Chapter One, “Torture and Torment,” compares abuses inflicted on black prisoners by Chicago police and on Muslim prisoners by the Central Intelligence Agency. It traces the origin of the Miranda warning (“You have the right to remain silent …”) and follows the routes of forced confessions from foreign prisons into American courtrooms. Chapter Two, “Confessing Falsely,” describes legally approved interrogation techniques that have elicited phony confessions from innocent Americans inside the United States.

  The third chapter, “The Assistance of Counsel,” examines the reality beneath the Sixth Amendment’s exalted requirement that every criminal defendant have the right to an attorney, a right insufficiently protected in certain parts of the country. The amendment’s other provisions—the rights to a speedy jury trial, to know “the nature and cause of the accusation,” and to call and cross-examine witnesses—have all been ignored in some of the most notorious counterterrorism actions since September 11, 2001. Those violations, which have corrupted the fact-finding process with special drama, also occur somewhat less severely in the everyday prosecution of street crime.

  In other aspects of the criminal justice system, enhanced executive powers have unbalanced the ingenious checks and balances envisioned by the framers. People can be locked up largely at the will of officials whose business of investigating, charging, and fashioning punishments is dominated by the executive branch, where policies and practices of law enforcement agents and government prosecutors hold overwhelming influence. The legislative and judicial branches have yielded substantial authority.

  This has been true not just in counterterrorism, where the Bush administration sought unchecked power for the president and his departments, but also in ordinary criminal procedure and immigration enforcement. Chapter Four, “The Tilted Playing Field,” assesses the decisive leverage granted to the prosecutor through coercive plea bargains and sentencing guidelines that avoid jury trials and limit judges’ discretion. The chapter also portrays the extraordinary power of the executive to jail men and women who are on probation, even without proving a violation beyond a reasonable doubt, and to seize cash and other assets without any evidence of a crime.

  Chapter Five, “Below the Law,” describes the life-altering penalty of deportation imposed on legal immigrants convicted of crimes, even minor offenses years earlier that brought little or no jail time. Imprisoned as they await their “removal,” they are entirely in the hands of the executive branch, whose immigration agents arrest them, whose immigration agency keeps them behind bars, and whose administrative judges decide their fates. Unlike criminal defendants, those in the immigration system are held under civil law that leaves them beyond the reach of many constitutional protections.

  The final chapters report on an American paradox: the raucous debate alongside the state’s incursions into the right of free speech even as the First Amendment shield is often breached in times of war. Chapter Six, “Silence and Its Opposite,” covers verbal and symbolic expression by immigrants, accused terrorists, and ordinary citizens who run afoul of police and prosecutors, illustrating how law enforcement sometimes violates the Supreme Court’s First Amendment rulings. It is not always easy to implant high court opinions on speech rights into the lowly grass roots of America. Chapter Seven, “A Redress of Grievances,” reports on street demonstrations by dissenting groups that are intrusively monitored and sometimes thwarted by authorities. Chapter Eight, “Inside the Schoolhouse Gate,” focuses on high schools and colleges, where First Amendment rights are often violated and education in the principle of free speech is often absent. The chapter is essentially about the future, for as young citizens grow up seeing their civil liberties restricted or ignored, their adult citizenship may be impaired. “When we are planning for posterity,” wrote Thomas Paine, “we ought to remember that virtue is not hereditary.”8

  The American experiment has succeeded so far because of the capacity for self-correction, that vital quality of a decent society. We correct by bringing problems into the light. We correct by electing new leaders and legislators. We correct by striking down unjust laws, by protecting minority interests against majority abuse, by empowering the powerless, by ensuring that the humble may stand tall before the awesome authority of the state. These are not just wishful ideals; they are principles of the Constitution, whose mechanism of self-correction is a lasting gift, if we keep it faithfully.

  * Italicized note numbers indicate that significant information beyond sourcing can be found in the corresponding notes at the end of this book.

  CHAPTER ONE

  Torture and Torment

  I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness. Finally, I plead guilty to having placed the idea of man above the idea of mankind.

  —Rubashov, in Darkness at Noon

  BODY AND MIND

  ANDREW WILSON and Khalid Sheikh Mohammed had two things in common: they were killers, and they were tortured by Americans using near suffocation—Wilson by Chicago police officers in 1982, Mohammed by CIA officers twenty-one years later.

  Wilson had shot two Chicago cops during a traffic stop. Mohammed had masterminded the attacks of September 11, 2001. In the Chicago police station at Ninety-first Street and Cottage Grove Avenue, a plastic bag was placed over Wilson’s head; he could barely breathe. At a secret CIA prison, possibly in Poland, Mohammed was “waterboarded”—strapped to a gurney with his head tilted down, while water was poured into a cloth covering his nose and mouth to create the sensation of drowning; he struggled in panic, writhing against the restraints and injuring his wrists and ankles.1

  Other techniques were applied in a coercive combination, and experts know that it is the combination, not just the individual methods, that works its will. Chicago detectives gave Wilson electric shocks to his gums, lips, nose, and genitals. They burned him, first with a cigarette and then by stretching him, handcuffed, across a hot radiator. CIA interrogators shackled Mohammed to the ceiling by his arms so that he couldn’t sleep for days. For a month they kept him naked, exposing him to female personnel as a tactic of degradation.

  Wilson was kicked, slapped, punched, and bloodied by several officers to the point where guards refused to accept him in the lockup, forcing his police escorts to take him to the hospital. Mohammed was underfed, beaten, chilled in cold cells, stifled in hot cells, and slammed into walls to the point where CIA headquarters interrupted the “questioning.” He would not be allowed to die, Mohammed was told by an American, but would be taken to the “verge of death and back again.”2

  The United States has lost its way a few times during its history, most recently in the era of modern terrorism. As the abuse in Chicago shows, however, the post-9/11 violations are not unprecedented. They are variations on old themes, always in the name of protecting the nation or the neighborhood against some threat, internal or external. These measures, these shortcuts across the Constitution, form a spectrum of paradoxes, bringing more danger than safety. They are designed to produce investigative accuracy and security, against both common crime and terrorist plots, but they often do the opposite. They generate error, jeopardize the country’s morality, undermine its rule of law, and put everyone at risk. Torture, one of many shortcuts, stands at the extreme end of that spectrum.

  The interrogations of Andrew Wilson and Khalid Sheikh Mohammed had different objectives: the contrast between the past and the future. Wilson was questioned about what he had already done, Mohammed about what his cohorts were planning to do. The rules were not the same for gathering evidence inside the United States and gathering intelligence outside, for prosecuting a criminal case and for preventing the next act of terrorism. Yet the questioners actually used similar techniques, and nothing new in the annals of torture.

  They created not only physical suffering but psychological torment. “Coercion can be mental as well as physical,” the Supr
eme Court had noted back in 1960. “The blood of the accused is not the only hallmark of an unconstitutional inquisition.”3 Humiliation, disorientation, and helplessness descended on both men until they talked. Wilson admitted to the murders, which his lawyers later conceded he had committed. Mohammed expressed pride in arranging for 9/11 and added considerable information about al-Qaeda.

  To end the torture, however, Mohammed mixed fact and fiction together. On the factual side, he reportedly named multiple names, leading agents to capture Riduan Isamuddin, a.k.a. Hambali, head of the South Asian movement Jemaah Islamiyah, which had killed over two hundred people in a Bali nightclub bombing and (according to President George W. Bush) planned to fly a hijacked airliner into the Library Tower in Los Angeles.4 Former Vice President Dick Cheney insisted repeatedly that the “enhanced interrogation techniques” had generated valuable intelligence, which he urged be declassified to prove his point.

  Yet Mohammed’s tales of his own grandeur began to sow skepticism among CIA officials. They came to doubt his boasts of laying plans to assassinate former presidents Carter and Clinton and Pope John Paul II, for example, and his claims to have personally beheaded Daniel Pearl, a Wall Street Journal reporter, in Pakistan. Agents understood Mohammed as an organizer who killed only by remote control, never staining his hands with the blood of his victims. “Although few outside of the CIA knew it, Mohammed had recanted substantial portions of his initial confessions,” writes Jane Mayer in The Dark Side.5

  Later, when the torture had ended, he bragged to the International Committee of the Red Cross that he had filled his sessions with fantasies. “During the harshest period of my interrogation,” he said, “I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told interrogators that their methods were stupid and counterproductive. I’m sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time and led to several false red-alerts being placed in the United States.”6 But CIA officials also claimed that after being waterboarded 183 times, he provided useful and accurate information on al-Qaeda, leading to at least five arrests (including that of an Ohio truck driver planning fancifully to bring down the Brooklyn Bridge with blowtorches).7 In his memoir, Bush wrote that he had personally approved waterboarding, and former officials in his administration claimed—without offering any evidence—that “enhanced interrogation” had extracted the pseudonym of a courier (supposedly a protégé of Mohammed) who was then followed to Osama bin Laden’s hideout in Pakistan, where an American squad killed him in 2011. Rough questioning of a Guantánamo prisoner “provided a crucial description of the courier,” The New York Times was told by officials, but waterboarding didn’t get the information. In fact, officials said that Mohammed had given misleading information about the man.8

  There are layers of lessons in the cases of Wilson and Mohammed, the African-American with the Chicago police and the Pakistani Muslim with the CIA. First, torture generates truth, and torture generates lies, and it is nearly impossible to tell the difference. In the repugnant debate following 9/11 over whether torture is ever acceptable, proponents argue that it can loosen tongues and provide critical information to defuse the ticking bomb—a hypothetical scenario not yet witnessed, as far as we know, anywhere at any time.

  Second, “our most deeply held values,” cited by President Barack Obama after ending the CIA’s torture regime, turn out to be shallow, held by only half of Americans, who split down the middle on torture, 49 percent pro to 47 percent con, in a sample polled by the Pew Research Center. And this came not in a fury of fear but in 2009, after a long, quiet, eight-year hiatus from domestic terrorism. Completing the statement “Torture to gain important information from suspected terrorists is justified _____,” 15 percent said “often,” 34 percent said “sometimes,” 22 percent said “rarely,” and merely 25 percent said “never.”9 Two out of three Republicans approved of torture, compared with just over one-third of Democrats. A high school teacher near Seattle, Katie Piper, said in 2010 that for most of her advanced-placement government students, the legitimacy of torture, once a closed question, had become “open,” a topic for consideration.

  When supporters claim that torture works, opponents reply that it doesn’t, the utilitarian argument. This conversation, once unthinkable in America, has been dragged down from an ethical plane to a low dispute about pragmatism, where the answer to the tough guys has to be equally tough-minded and self-interested: Coercion creates false confessions and false intelligence, sending the wrong people to prison and deploying soldiers and agents on phony leads. Softer, rapport-building sessions are more effective.

  Opponents might just declare torture immoral and leave it there, but they don’t have the luxury of principle. They might offer their own hypothetical scenario, posed by Michael Sandel: “Suppose the only way to induce the terrorist suspect to talk is to torture his young daughter (who has no knowledge of her father’s nefarious activities). Would it be morally permissible to do so?” Shifting the abuse from the presumably guilty suspect to the innocent child “offers a truer test of the utilitarian principle.”10 It would be interesting to hear Cheney’s response.

  An example of the pitfalls of pragmatism emerged in the interrogation of an al-Qaeda operative, Abu Zubaydah, who apparently told all that he knew before the abuse began. Another case produced an imaginary tale that gave Bush officials a rationale for the Iraq war, Jane Mayer writes, when Egyptians torturing a captive got him to fabricate a story about three al-Qaeda operatives “going to Iraq to learn about nuclear weapons.”11

  Professional interrogators have joined this debate, arguing persuasively that it’s more effective to treat captives with dignity—something they don’t expect. Brutality is a sign of an investigator’s incompetence, writes Colonel Stuart Herrington, a retired army intelligence officer who questioned prisoners from wars in Vietnam, Panama, and the Persian Gulf. “In the course of these sensitive missions,” he says, “my teams and I collected mountains of excellent, verified information, despite the fact that we never laid a hostile hand on a prisoner.” Instead, “one has to ‘go to school’ on each captive. Who is he? Can I communicate with him in his language? What are his core beliefs? His loves? Hates? Fears? Where do his loyalties lie? Does he have a family, an inflated ego, perhaps some other core vulnerability?” And so on. But it takes patience and time, and interrogators at the U.S. prison at Guantánamo Bay naval base in Cuba, whom he advised, told him they were under pressure to get information by the end of the day.12 Eventually, once the reports are declassified, we’ll know the truths and falsehoods that were extracted by torture; we’ll never know what other truths might have been learned through humane interrogation.

  The third lesson is this: our national boundaries are not quite the fortress against torture that we would like to think. We cannot do it abroad and expect that it will never seep into the homeland. The hand-cranked generator used to shock Wilson and more than one hundred other black suspects from the early 1970s into the 1990s resembled the army field phone employed on prisoners in Vietnam, where the method was called the Bell Telephone Hour, and was nicknamed the Vietnam special or the Vietnam treatment in Chicago’s Detective Area 2. The white police commander there, Jon Burge, who was eventually fired for torturing, had joined the department after serving in the army’s Ninth Military Police Company in Vietnam in 1968 and 1969.13

  A reverse contamination also occurred, according to a senior legal officer in the air force, who told me that military guards had complained about reservists carrying to Iraq the violent, humiliating methods they used in their jobs as civilian “correction officers” in U.S. prisons. The most notorious example was Specialist Charles Graner Jr., sentenced to ten years as the ringleader at Abu Ghraib, the prison in Iraq where American soldiers, with approval from superiors, staged and photographed degrading abuse—the naked prisoners in a pyram
id, the hooded prisoner with wires attached, the prisoner collared like a dog, the thumbs-up grin next to a dead prisoner’s body—images now memorialized as icons of America’s brutality. Graner had been a prison guard in Pennsylvania, where he was accused of slipping a razor blade into an inmate’s mashed potatoes, bloodying his mouth, and of beating prisoners.14

  The effects of the Iraq war on American policing have not yet come to light. We do not know if police practices inside the United States have been tainted by work that officers may have done as guards and interrogators in Afghanistan, Iraq, and Guantánamo Bay. If it is happening, judging by the Chicago case, it will take many years, many complaints, and many court motions and prisoner lawsuits to work its way out of the deep shadows cast by police loyalty and prosecutor acquiescence. Abuse in closed interrogation rooms is hard to prove.

  It’s safe to say, nonetheless, that most American police departments do not apply electrodes to most suspects. They do not generally put plastic bags over their heads, burn them on radiators, or even beat them—at least not to leave visible marks, which were the Chicago cops’ undoing. But there are many other ways of coercing confessions, and there are many confessions that are given to stop the coercion. Some are true, some are false. So here, as in other areas of the Bill of Rights, we are looking at a spectrum, with waterboarding in Afghanistan and plastic hoods in Chicago at one end, and other methods spread broadly along the continuum.

  CHICAGO

  Andrew Wilson, on parole for armed robbery, was wanted on two warrants. He and his brother Jackie had just committed a burglary when a patrol profiling suspicious-looking vehicles pulled them over. Andrew, getting out of the passenger seat, grabbed one officer’s gun, struggled, shot him dead, then turned to the other and killed him as well. They then drove off in what witnesses described as a brown two-door Chevrolet Impala with a bent front grille.