All these surveys and statistics suggest that the glass is more than half full, but with an empty space large enough to describe a significant region of indifference to constitutional rights. Even the majority’s support for civil liberties seems soft. It doesn’t translate into political action, doesn’t drive most voters’ choices, and therefore leaves elections to lawmakers who don’t put individual rights high on the agenda. The populist Tea Party movement, which has startled establishment Republicans with its grassroots outrage at “big government,” has exacted no penalty from politicians who enlarge government in a most personal way through intrusions on the First, Fourth, Fifth, and Sixth Amendments. Government is evidently too big when it regulates the private sector or provides social benefits, but not when it invades the rights of defendants and dissenters.
In American culture, it should take courage to defy the principles in the Bill of Rights. Instead, it seems to take courage to uphold them. The threshold of violations at which broad criticism is triggered should be low. Instead, it seems to have risen practically beyond reach. Witness the fate of the National Security Agency’s warrantless surveillance: after a spasm of protest when the secret program was revealed by The New York Times, Congress effectively legalized it.
Increasingly, federal judges nominated by Republican presidents have undermined the courts’ modern role as defenders of individual rights. The Supreme Court, tilting toward institutional interests, is eroding some of the protective case law of the twentieth century. As one result, especially in Fourth and Fifth Amendment areas, individuals are facing a heavier responsibility to be informed about their own rights.
This might be a good thing if it spurs inventive educational programs. In a way, it is pathetic in this open system that people under arrest have to be read the Miranda warning. We should all know that we have the right to remain silent without having to be told by our interrogators. We should know that we have a right to a lawyer. We should know that we have the right to refuse a police officer’s warrantless search, without probable cause, of our car and our home and our body. We should not be constitutionally illiterate. We should feel inside ourselves the power that flows to us from the Constitution.
If every American school taught the Bill of Rights in a clear and compelling way, if every child knew the fundamental rules that guide the relationships between the individual and the state, then every citizen would eventually feel the reflexive need to resist every violation. We had better begin now, for rights that are not invoked are eventually abandoned.
NOTES
INTRODUCTION: THE INSOLENCE OF OFFICE
1. This was Madison’s approving summary of earlier statements by another delegate who, Madison lamented, now endorsed letting the House make its own rules on apportionment. The full sentences in the record read: “Mr. Madison was not a little surprised to hear this implicit confidence urged by a member who on all occasions, had inculcated so strongly, the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest.… The truth was that all men having power ought to be distrusted to a certain degree.” Notes, Madison Debates, Constitutional Convention, July 11, 1787, Avalon Project, Lillian Goldman Law Library, Yale Law School.
2. Among the high-income sample, the United States was ranked ahead of only Singapore and South Korea. In its peer group of Western Europe and North America, Sweden, the Netherlands, Austria, Canada, Spain, and France exceeded the United States in imposing limitations on their governmental powers. Eight factors were considered in defining those limits: the extent to which government’s authority is restrained by fundamental law, by the legislature, by the judiciary, by independent auditing and review, by sanctions against officials for misconduct, by freedom of expression, by compliance with international law, and by the transitions of power in accordance with the law. World Justice Project, Rule of Law Index: 2010 (Washington, D.C.: World Justice Project, 2010), pp. 9, 94, 105.
3. Habeas corpus (“you have the body”) has ancient origins, was embedded in Anglo-Saxon common law, and was codified in the Magna Carta: “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land.” It appears in art. I, § 9 of the U.S. Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” 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. English common law, which took on the weight of custom and consensus in the absence of a written British constitution, was codified and explained by Sir William Blackstone, a British judge who published his Commentaries on the Laws of England a decade before the American Revolution. Common law remains an informing presence in American jurisprudence.
4. McCulloch v. Maryland, 17 U.S. 316 (1819).
5. For a fuller discussion of the five previous detours, see David K. Shipler, The Rights of the People: How Our Search for Safety Invades Our Liberties (New York: Knopf, 2011), pp. 9–20.
6. The Saudi-American was Yaser Esam Hamdi, raised in Saudi Arabia from the age of three, captured in Afghanistan, and transported to Guantánamo, where the military discovered his U.S. citizenship when he mentioned that he’d been born in Louisiana. He was then transferred to American soil, first to the naval brig in Norfolk, then to the brig in Charleston, South Carolina. The other U.S. citizen, Jose Padilla, was arrested in Chicago and accused in official statements of plotting to detonate a dirty nuclear bomb and to blow up apartment buildings with propane gas. He claimed to have been tortured, and neither of these charges appeared in his indictment when he was ultimately transferred to criminal court, where he was tried and convicted of membership in a cell that conspired to commit murder overseas. He was sentenced to seventeen years and four months. The third man, Ali Saleh Kahlah al-Marri, was a legal resident of the United States when arrested on American soil. He was transferred to the civilian courts after the Supreme Court agreed to hear his case.
7. First the Military Commissions Act of 2006, Public Law 109-366, then the Military Commissions Act of 2009, amending 10 U.S.C. § 47A.
8. Thomas Paine, Common Sense (1776).
CHAPTER ONE: TORTURE AND TORMENT
1. International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, Feb. 2007, p. 10.
2. The account of Andrew Wilson’s torture is drawn largely from Edward J. Egan, Special State’s Attorney, and Robert D. Boyle, Chief Deputy Special State’s Attorney, Report of the Special State’s Attorney, July 19, 2006, pp. 43–66, with accompanying documents, and John Conroy’s reporting in the Chicago Reader, for example, “House of Screams,” Jan. 26, 1990, http://www.chicagoreader.com/policetorture/900126/. Details on the torture of Khalid Sheikh Mohammed are based on his statement to the International Committee of the Red Cross in its Feb. 2007 report, and on corroborations by CIA and other officials cited in Jane Mayer, The Dark Side (New York: Doubleday, 2008), pp. 272–79. Mayer’s sources include European and American intelligence experts, former CIA detainees, and their lawyers.
3. Blackburn v. Alabama, 361 U.S. 199, 206 (1960), summarizing its conclusion in an earlier case, Chambers v. Florida, 309 U.S. 227 (1940).
4. Deb Riechmann, “Bush Details 2002 al-Qaeda Plot on L.A.,” AP, Feb. 9, 2006.
5. Mayer, Dark Side, p. 277.
6. International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, p. 37.
7. The truck driver was Iyman Faris. Peter Finn, Joby Warrick, and Julie Tate, “How a Detainee Became an Asset,” Washingt
on Post, Aug. 29, 2009. CIA Inspector General, “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003),” May 7, 2004.
8. Jane Mayer, “Bin Laden Dead, Torture Debate Lives On,” News Desk blog, The New Yorker, May 2, 2011, “Torture,” Times Topics blog, New York Times, May 4, 2011.
9. Based on a representative sample of 742 adults, interviewed in English and Spanish on landlines and cell phones, with a sampling error of plus or minus four percentage points. Pew Research Center for the People and the Press, “Public Remains Divided over Use of Torture,” http://people-press.org/report/510/public-remains-divided-over-use-of-torture. At the Tower of London, where tourists could push a button approving or disapproving of torture, the approvals overwhelmed the disapprovals when the author visited—although nothing prevented any visitor from pushing the button as many times as he wished to register multiple votes. As unscientific as the experiment was, it made for a wry comment on the short distance humanity has traveled since Guy Fawkes was tortured there in 1605.
10. Michael Sandel, Justice (New York: Farrar, Straus and Giroux, 2009), p. 40.
11. He was Ali Abdul Aziz al-Fakhiri, a Libyan captured late in 2001 in Pakistan and an alleged al-Qaeda commander who used the nom de guerre Ibn al-Shaykh al-Libi. Mayer, Dark Side, pp. 104, 134. He was also said to have claimed falsely that Iraq was instructing al-Qaeda on using chemical and biological weapons. Douglas Jehl, “Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim,” New York Times, Dec. 9, 2005, p. A1.
12. Stuart Herrington, Pittsburgh Post-Gazette, Oct. 21, 2007. He was one of fifteen senior interrogators and intelligence officers from the military, the FBI, and the CIA who signed a statement in 2008 categorically rejecting torture: “We believe:
“1. Non-coercive, traditional, rapport-based interviewing approaches provide the best possibility for obtaining accurate and complete intelligence.
“2. Torture and other inhumane and abusive interview techniques are unlawful, ineffective, and counterproductive. We reject them unconditionally.
“3. The use of torture and other inhumane and abusive treatment results in false and misleading information, loss of critical intelligence, and has caused serious damage to the reputation and standing of the United States. The use of such techniques also facilitates enemy recruitment, misdirects or wastes scarce resources, and deprives the United States of the standing to demand humane treatment of captured Americans.
“4. There must be a single well-defined standard of conduct across all U.S. agencies to govern the detention and interrogation of people anywhere in U.S. custody, consistent with our values as a nation.
“5. There is no conflict between adhering to our nation’s essential values, including respect for inherent human dignity, and our ability to obtain the information we need to protect the nation.” Human Rights First, Summer 2008.
13. John Conroy, “Tools of Torture,” Chicago Reader, Feb. 4, 2005. Burge denied torturing or witnessing torture, either in Vietnam or in the United States. Members of Burge’s military police unit told Conroy that field phone interrogations had taken place at prison camps they guarded. In 1990, an investigation by the Chicago Police Department’s Office of Professional Standards concluded that Burge had tortured suspects, and the Chicago Police Board then fired him. An investigation from 2002 to 2006 by a special state’s attorney appointed by the chief judge of the Criminal Division of the Circuit Court of Cook County found three cases of torture provable beyond a reasonable doubt and several others with strong evidence; prosecution of Burge and other officers was impossible because the statute of limitations had run out. In 2008, Burge was indicted by a federal grand jury for perjury and obstruction of justice, for allegedly denying under oath in a civil suit that he had engaged in torture. He was convicted and sentenced to four and a half years in prison.
14. David Finkel and Christian Davenport, “Records Paint Dark Portrait of Guard,” Washington Post, June 5, 2004.
15. John Conroy, “The Persistence of Andrew Wilson,” Chicago Reader, Nov. 29, 2007.
16. Although the de facto finding was set aside by the Seventh Circuit, upon remand to the trial court, the district judge granted summary judgment in Wilson’s favor, based on the Chicago Police Board’s findings, which resulted in the dismissal of Burge and the suspension of two other officers. Of the $1 million, $100,000 went to Wilson and $900,000 to his lawyers. Egan and Boyle, Report of the Special State’s Attorney, p. 44. Also, Wilson v. City of Chicago, Nos. 89-3747 and 90-2216 (7th Cir., Oct. 4, 1993).
17. Conroy, “Persistence of Andrew Wilson.”
18. Arthur Koestler, Darkness at Noon (New York: Bantam, 1966), p. 173, originally published in 1941 by Macmillan.
19. Francine Sanders and Michael Goldston, “Special Project,” Chicago Police Department, Office of Professional Standards, Nov. 2, 1990, http://humanrights.uchicago.edu/chicagotorture/torturebypolice/GoldstonSanders.pdf.
20. Indictment, United States v. Jon Burge, No. 08-CR-00846 (N.D. Ill., E. Div. 2008).
21. Marcus Wiggins, deposition, June 14, 1996, Wiggins v. Burge, at “Human Rights at Home: The Chicago Police Torture Archive,” University of Chicago, http://humanrights.uchicago.edu/chicagotorture/victimsstatements.shtml.
22. Alfonzo Pinex Exhibit No. 1, Statement of Alphonso [sic] Pinex, June 29, 1985, Egan and Boyle, Report of the Special State’s Attorney, p. 291.
23. Dr. John M. Raba to Richard J. Brzeczek, Feb. 17, 1982, Brzeczek Exhibit No. 2, Egan and Boyle, Report of the Special State’s Attorney, p. 107.
24. Richard J. Brzeczek to Richard M. Daley, Feb. 25, 1982, Brzeczek Exhibit No. 3, Egan and Boyle, Report of the Special State’s Attorney, p. 108.
25. Egan and Boyle, Report of the Special State’s Attorney, p. 17.
26. John Conroy, “Blind Justices?” Chicago Reader, Dec. 1, 2006.
27. Philip Zelikow, “The OLC ‘Torture Memos’: Thoughts from a Dissenter,” Shadow Government (blog), Foreign Policy, April 21, 2009. Also, interview, Morning Edition, NPR, April 23, 2009. Nearly all copies of his memo rebutting a legal justification for torture written by John Yoo were confiscated, and it remained classified.
28. The air force officer responsible for SERE, Lieutenant Colonel Daniel J. Baumgartner, warned in a Dec. 2001 memo that “physical pressure was ‘less reliable’ than other interrogation methods, could backfire by increasing a prisoner’s resistance, and would have an ‘intolerable public and political backlash when discovered.’ ” Scott Shane and Mark Mazzetti, “In Adopting Harsh Tactics, No Inquiry into Past Use,” New York Times, April 22, 2009, p. A1.
29. The CIA apparently began using the techniques before getting legal approval. In response to an ongoing lawsuit under the Freedom of Information Act by the American Civil Liberties Union, four memos were released in April 2009, from which the details of permitted abuses are drawn: “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation of al Qaeda Operative [Abu Zubaydah],” signed by Jay S. Bybee and drafted by John Yoo, Office of Legal Counsel, Dept. of Justice, Aug. 1, 2002; “Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of 18 U.S.C. §§ 2340–2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee,” by Stephen G. Bradbury, Office of Legal Counsel, May 10, 2005; “Memorandum for John A. Rizzo, Re: Application of 18 U.S.C. §§ 2340–2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees,” by Bradbury, May 10, 2005; and “Memorandum for John A. Rizzo, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees,” by Bradbury, May 30, 2005.
30. 18 U.S.C. § 2340. Philip Zelikow, the State Department counsel who wrote a rebuttal to Yoo’s interpretation, advised against r
evising the law to make it more specific, noting that if banned techniques were listed, those not listed might be considered legal. Generic prohibitions were preferable, he said, and after the Bush administration’s torture the rubber band had snapped back so hard and the Yoo memo had been repudiated so firmly that no lawyer would try this again. Zelikow was convinced that neither the military nor the CIA would be willing to do it. Conversation with author, March 23, 2010.
31. Vladimir Bukovsky, “Torture’s Long Shadow,” Outlook, Washington Post, Dec. 18, 2005, p. B1.
32. Douglas A. Blackmon, Slavery by Another Name (New York: Doubleday, 2008), pp. 71, 347.
33. Evan Wallach, “Waterboarding Used to Be a Crime,” Outlook, Washington Post, Nov. 4, 2007, p. B1.
34. H.R. 5460 amending the Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd, to include “waterboarding, which includes any form of physical treatment that simulates drowning or gives the individual who is subjected to it the sensation of drowning,” in the definition of “cruel, inhuman, or degrading treatment,” and in the definition of “torture” under 18 U.S.C. § 2340(1).
35. Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd, and Military Commissions Act of 2006, § 948r.
36. Military Commissions Act of 2006, § 948r.
37. The standard, contained in article 16 of the Convention Against Torture, was not violated by the CIA’s methods, according to Bradbury. “Application of United States Obligations Under Article 16,” May 30, 2005, pp. 39–40.
38. Scott Shane, “Divisions Arose on Rough Tactics for Qaeda Figure,” New York Times, April 18, 2009, p. A1. Initially, the CIA mistakenly identified Zubaydah as third or fourth in the al-Qaeda hierarchy.
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