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Stealing Liberties


September 17, 2012

Pulitzer Prize winner David Shipler on why bad guys deserve rights, how small-town officials wield big-time power, and why Obama has been bad for the Constitution.

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Image courtesy Kate Mccarthy

David Shipler’s interest in civil liberties and privacy issues comes from an early childhood memory. During the Army-McCarthy hearings, he would come home to find his Communist-hating, Eisenhower-loving grandmother sitting with an “iron back” seething at Senator Joseph McCarthy and his sycophant Roy Cohn. “It made a big impression on me at the level of just sheer decency,” he says. “What government could do to people if it went off the rails. And that planted some kind of seed.”

Shipler went on to a distinguished career in journalism. He was promoted from a news clerk to a city staff reporter at the New York Times in the mid-sixties, where he covered housing, poverty, and politics. He served as a foreign correspondent in Saigon, correspondent and bureau chief in Moscow, and bureau chief in Jerusalem, where he collected the material to write his Pulitzer Prize-winning work, Arab and Jew: Wounded Spirits in a Promised Land. It wasn’t until the twilight of his career that Shipler returned to his original interest in civil liberties, embarking on what has become a three-book project exploring American institutional adherence to the Bill of Rights’ most hallowed amendments.

“I did what any decent reporter would do: become self-educated in the subject by reading extensively in the law, in court cases, in legal experts’ analyses, and by questioning a broad array of specialists,” he says. Shipler was granted access to the Federal Public Defenders’ office in Washington, D.C., where he kept a desk for a month and was given free rein to look over the shoulders of the office’s lawyers as they defended the rights of society’s poorest and most marginalized. At night, he embedded with two D.C. police units as officers stopped and frisked search of illegal guns and orchestrated undercover drug busts. Often when he looked up, he could see the Capitol dome. These experiences became the material he used to write The Rights of the People, which focused on how the wars on drugs and terrorism have eroded Americans’ Fourth Amendment right to be free from unreasonable searches and seizures, and his latest work, Rights at Risk, which investigates how all levels of government violate Americans’ rights to free speech, due process, and counsel. Shipler’s next book takes his project to its logical and provocative end: how First Amendment activity is respected inside the nation’s private institutions. Despite a beard that would make any late 19th century Russian anarchist proud, Shipler is no radical. Rather, his investigation into the state of American civil liberties has led him to believe that people’s rights have become brittle as police and prosecutors have gradually chiseled away at procedural protections, and judges looked the other way.

Sitting inside Shipler’s living room in suburban Washington on an early summer day, I’m struck by how its décor reflects the man: simple, sturdy, and full of history. Asian art, collected during his many voyages overseas, fills the room, along with other pieces from more European quarters. Polite and principled, he seems like the antithesis of the Beltway’s embrace of Christopher Hitchens-like pomp and pretentiousness. After exchanging some pleasantries, we begin a wide-ranging, two-hour conversation on the state of American civil liberties and how each branch of government, especially Obama’s executive, has abdicated responsibility for protecting America’s quintessential freedoms.

–Matthew Harwood for Guernica

Guernica: You spent a good amount of time in the Soviet Union. Do you see any similarities between post-9/11 America and its former foe?

David Shipler: I think there are autocratic personalities in every society and in every government. The autocratic in the Soviet government had no restraints on them. There was no genuine constitutional system embedded in the rule of law. I remember a dissident telling me about when his house was searched once. He was detained and went to his KGB interrogator and started citing the Soviet constitution, which is full of wonderful sounding provisions, such as the privacy of mail and telephone communications and all that. When he started citing the constitution, the KGB interrogator got a smirk on his face and looked at him and said, “Please, we’re having a serious conversation.”

In the Bush administration, there was a tendency by some prominent officials to roll over the law, to make interpretation of the law conform with the actions they wanted to take, rather than vice versa. They evaded the law entirely in some cases, such as the NSA surveillance before it was authorized by Congress. There was also a lot of political litmus testing going on for people hired by various agencies. Questions were asked of potential employees in the Justice Department that had nothing to do with their potential jobs but rather with their politics, their views on abortion, why do you want to serve President Bush? If the Federalist Society recommended someone, that candidate had a leg up, just as if the Communist Party recommended someone, that candidate had a leg up. You had to be a member of the Communist Party to hold certain key positions in the Soviet Union–history professor, journalist, economics professor, factory manager, head of a medical institution, and so forth. So there was a sense in the Bush administration that there was a political loyalty that was required before you could be given certain jobs, even though they had nothing to do with politics, and were not supposed to. Unqualified people were given these jobs. Look at the administration in Iraq that was disastrous, partly because young people who had campaigned down in Florida after the election got hired to do accounting, which they didn’t know how to do.

What prevents the United States from becoming like the Soviet Union is our constitutional system and mechanisms, which include the separation of powers, the body of court precedent, the adversarial relationship in the courts, and all of the constitutional mechanisms that divide and limit authority. It’s very difficult for an authoritarian officials to implement authoritarian policies for very long. They got away with it in a few cases in the Bush administration for a time.

There’s no question that rights have been eroded, quite dramatically. Those erosions have gone beyond just the actions of the executive and have been embedded in law, and increasingly, in court precedent

In the Obama administration, the attempts are continuing in certain respects, but they run up against the bulwark of constitutional protections. Although this bulwark is not as firm or as restrictive as some of us would like, in terms of government power, it makes all the difference. The difference between a democracy like the United States and a dictatorship like the Soviet Union is that the autocratic officials who exist in both systems can work their will in dictatorships, but not so easily in democracies. That goes back to what James Madison said at the constitutional convention: “All men having power ought to be distrusted to a certain degree.” Madison saw very clearly the dangers of not having these checks and restraints. The lesson for us is maintaining our constitutional system vigorously. Maintain the mechanism with great care and energy. We do that by protesting, filing suit, resisting, watching the legislation we enact closely, and communicating with our legislators to make sure they don’t succumb to the fear of the moment but rather take a longer perspective on national security risks.

Guernica: Do you think the United States has an imperial presidency when it comes to homeland and national security?

David Shipler: I think in all periods of American history when national security has been a great concern, presidential power has expanded and both the legislative and judicial branches have been supine, beginning with John Adams and the Alien and Sedition Acts then going on to the Civil War, the World War I period, the Smith Act of 1940, World War II, the Cold War, and the FBI’s COINTELPRO. In all of these periods national security has seemed at risk, and therefore the various branches of government have not acted in accordance with the role provided by the Constitution, which was to check and balance. We are still in that period of post-9/11 America. There’s no question that rights have been eroded, quite dramatically. Unfortunately, I think the erosions have been codified now. They have gone beyond just the actions of the executive and have been embedded in law, and increasingly, in court precedent. So now on habeas corpus, you have an array of opinions in the appeals court in DC that emasculate the right of habeas corpus, which is a venerable right and certainly predates the U.S. Constitution by a long shot. The Fourth Amendment, as Federal Judge Paul Friedman said–he hears a lot of drugs and guns cases in DC–there’s not much left of the Fourth Amendment in criminal law anymore. That’s a pretty startling statement from a federal judge.

We’re still in this period of deviation from our fundamental constitutional protections. It’s going to be a very difficult period to end and I think there are several reasons. One is that there will be no obvious or dramatic signing ceremony that will end terrorism. The violations are done mostly in secret, therefore we will need a thorough exposure, a truth and reconciliation commission, a Church Committee, which did an excellent job of documenting the abuses by government agencies led by the FBI, including military intelligence, the IRS, the NSA, and others from the ’50s to the ’70s. Violations are not currently seen as a systemic failure, although they are in fact the product of systemic failures.

Some may think the Times reporting made Obama look good by looking tough; I think it revealed a deeply troubling propensity by the President to act as a one-man judge, jury, and executioner, without any true testing of the evidence against the person targeted.

The danger of too much information coming in to intelligence analysts is not obvious. I was talking to the counsel to the director of national intelligence, who was also in Iraq for a while. I asked him about the volume of information coming in due to relaxations under the Patriot Act for the collection of private information. He said people don’t even read most of it; it’s too much to process. What that leads to is a waste of energy, wild goose chases. The real problems are missed because they are submerged in other noise. You don’t hear the ominous melodies because there’s so much background noise. That kind of problem, which actually damages our security, has to be documented by a respected bipartisan or independent commission that has credibility. And to do that, you have to declassify information. You have to have subpoena power. You have to do it in a deliberate and careful and responsible way. Until that happens, it’s going to be very difficult to get revisions in the laws passed by Congress that enable these kinds of violations.

Guernica: Do you see a correlation between the intensity of these violations and a weak watchdog press?

David Shipler: That’s a hard argument to make. The New York Times exposed the NSA surveillance that was done without legal authority. The Washington Post exposed CIA imprisonment. There was a good deal of reporting on torture without official authorization from the government. Even recently, you’ve had stories about Obama’s drone program and selecting individuals to be targeted. Republicans may think the Times reporting made Obama look good by looking tough; I think it revealed a deeply troubling propensity by the President to act as a one-man judge, jury, and executioner, without any true testing of the evidence against the person targeted. And, of course, all of that is accompanied by the administration’s unprecedented prosecution of leakers, which is worrisome, but it doesn’t seem to have inhibited the leaking. There is cause for concern, no question, but I don’t think we’re dead yet. We still have a vigorous enough society of skeptics and even cynics to ferret out information important for people to know.

Guernica: So if news organizations are breaking enough serious news, does the lack of outrage from the public signal a change in the American people? Are we more willing to sacrifice liberty for safety?

David Shipler: I’m not sure of the answer. I have a hunch that when people know in human terms what happens to individuals whose personal rights are violated–whether in antiterrorism efforts or in ordinary criminal processes–they are really appalled. It strikes them as fundamentally wrong and a real departure from what we think we’re all about. The press has become a bit numb to all of this. There was so much debate after 9/11, so many sensational cases and outrages that the quieter, more systemic problems of constitutional violations do not get the attention they deserve. You don’t have a mobilization of real interest in looking at the broad landscape. There’s a Supreme Court decision that gets coverage. There’s an egregious violation that results in a guy sitting on death row who may be innocent. That gets a lot of attention.

The Innocence Project has succeeded in documenting over 250 cases in which convictions have been reversed through DNA evidence. In about 24 percent of those…the defendant confessed falsely to committing the crime. Extrapolating that to the whole universe of crime in which DNA evidence is not available, you see the vast landscape of injustice.

But the lesser crimes, the less visible crimes, the ones where defendants have their assets forfeited, for example, taken away from their cars traveling in the south. The lack of good lawyering in some parts of the country; the degree to which the police, without probable cause, do searches of certain people in certain situations, people on probation, for example; the degree to which people on probation can be put back in jail, not on the basis of proof beyond a reasonable doubt but just a preponderance of evidence–all of these are real serious violations and they’re legal. Most of the press attention focuses on violations where there is a rogue cop or a rogue prosecutor or the law is clearly violated or the evidence is so thin, that who could possibly convict? There is a lot of obvious injustice, but what I was trying to do in this book was to look at less sensational cases, less dramatic cases to show how in an everyday way, people are often violated.

For example, I wrote about Benjamin Molina, a 40-year-old carpenter from El Salvador who was legally in the U.S., and was driving his Toyota through Emporia, Virginia, with $18,000 in his car when local police pulled him over for having tinted windows—a typical ploy when cops want to stop someone who is black or looks Latino. They asked him if he had cash in the car. He’d just sold a house and had taken the money out of his bank account in case he saw a used car to buy on the way from New Jersey to North Carolina. The cops brought a drug-sniffing dog, which alerted on the bills (studies have shown that most bills circulating in the U.S. contain cocaine residue). They confiscated the money but didn’t charge him, because they had no evidence of drug possession. He was canny enough to find a lawyer specializing in forfeitures to sue to get most of it back (minus $100 deemed counterfeit and $1,000 for his lawyer), but most individuals from marginalized groups who have this experience don’t have the knowledge or the wherewithal to fight the seizures, which are put into the coffers of small-town police departments as slush funds. When I explained to Molina that he didn’t have to answer a cop’s questions about what he had in his car, and didn’t have to consent to a search, he expressed disbelief. “Then they will arrest me,” he said. “They do whatever they want with the law.”

Guernica: You have an interesting way of framing the famous Miranda case. You write, “a noble legacy was left by an ignoble life.” In your opinion, does the public understand that their rights are protected when even the ignoble are given due process?

David Shipler: I don’t think they understand it, generally. I think that’s one reason why people don’t get exercised about the violations because they see the people being violated as crooks and schemers and no-good types, without remembering Miranda. I’m sure that if you go out on the street, everyone knows what the Miranda warning is, but if you asked them: who was Miranda? What was he alleged to have done? Was he innocent or guilty? My bet is they’d guess he was innocent. But he wasn’t; he was guilty and committed the horrible crime of sexually abusing a mentally defective woman. We have to understand that our system is built to protect everyone at once and not just some people. When the criminal or the accused is violated and the violation is allowed to stand, then all of our rights are also reduced. But if the violation is not allowed to stand, if the rights of crooks are upheld, then all of our rights are upheld. That’s the way our system works.

Guernica: Why is it important to make law enforcement jump through those hoops and not take the most expedient course of action, particularly in a time of terrorism, most famously exemplified when the FBI Mirandized the underwear bomber, Umar Farouk Abdulmutallab?

David Shipler: Because there’s always the risk of a false confession. The Innocence Project has succeeded in documenting over 250 cases in which convictions have been reversed through DNA evidence. In about 24 percent of those cases, the defendant confessed falsely to committing the crime. Extrapolating that to the whole universe of crime in which DNA evidence is not available, you see the vast landscape of injustice and a huge problem of false confessions. If almost one-quarter of reversed convictions–and it takes a lot to get a conviction reversed by the court–involved a false confession, how many false confessions have put people in prison?

The Miranda warning is only one precaution against false confessions and it’s not very effective all by itself. The police are taught to work it casually into conversation. To say to the guy, “We have to do this, just sign this.” So he signs a waiver of his rights and then goes on talking. The police are also permitted to use techniques that induce false confessions, even though they’re trying for true confessions.

I am much more critical of President Obama than I would be if I had not done this civil liberties project… He’s doing serious damage to the country’s constitutional framework and culture.

I’m not suggesting that police are trying to get people to admit to crimes they didn’t commit, but they’re taught by professionals–there’s a whole interrogation industry that trains police interrogators–that under court precedent they can pretend to have evidence they don’t actually have. They can’t fabricate evidence, but they can wave a piece of paper and say, “This is a lab test. Your blood was found at the scene,” as long as the piece of paper isn’t actually a faked lab test. They can wave a fingerprint card and say, “Your print was found in the car,” as long as they don’t put the defendant’s print on the card (the officer can put his own print on the card). He could wave a DVD and say, “This is a security camera that shows you walked into the store just before it was robbed.”

The Miranda warning is supposed to guard against coercion. It’s supposed to level the playing field of power. It’s supposed to remind defendants that they have power under the Constitution: under the Fifth Amendment, to refuse to answer questions, and under the Sixth Amendment, to have a lawyer present. Done properly, the police interrogator would say: “Before we have any conversation, I have to advise you that you have the right to remain silent. Any questions that you answer or any statements you make can be used against you in a court of law. You have the right to counsel, here, now. Do you understand these rights?”

That is a way of the interrogator giving up some of his authority. But that’s not the way it’s usually done. It’s recited or given in writing, but it’s not done in a way that induces the interrogator to give up any power.

To state the obvious: if the person confesses falsely and the wrong person is put into the hole, the police stop looking for anyone else. So the real culprit may be out there continuing his crime spree, as Matias Reyes was after he raped and beat the central park jogger. Five other guys were arrested and confessed, and their confessions were full of factual errors. The location of the crime was wrong. The time was wrong. The police lied to one of them about evidence found linking that person to the crime. That summer, Reyes went on and raped four more women while these five innocent guys were locked up. One of the women that Reyes raped, he killed. She was pregnant. How does that make society safer?

Guernica: Has this project changed your politics at all?

David Shipler: I can’t really say that I’ve changed my political attitudes or my place on the political spectrum during this project. I think what has happened is that I’ve expanded my own knowledge of the grievances one can have about what happens in this society. There is a framework of defects in the way we employ our Constitution that I was not fully aware of before I set out on the project. I certainly never expected to hear a federal judge tell me that the Fourth Amendment no longer had much force in criminal law. I knew about rogue police violating laws and violating rights. What I didn’t know was much the courts had enabled that and how permissive the courts had become, at all levels, not just the Supreme Court, at opening exceptions to various rights and allowing police and other law enforcement officials to move far beyond what I think the framers would have had in mind.

I am, however, much more critical of President Obama than I would be if I had not done this civil liberties project because I see much more clearly than I would have, and much more clearly than most of his supporters, who are concerned about civil liberties, how much damage he’s really doing. He’s doing serious damage to the country’s constitutional framework and culture.

Guernica: And there’s a deep irony to that.

David Shipler: There is a deep, deep irony to that. For me, it’s very painful because I voted for him with enthusiasm and now I’m going to vote for him with no enthusiasm because I think Mitt Romney would be much worse in the civil liberties area, in the economic area, in the social justice area, in terms of addressing the problems of the poor or the middle-class who are struggling to stay out of poverty.

Guernica: What has been the most egregious of President Obama’s constitutional transgressions?

David Shipler: The Obama administration has been on the wrong side of almost every judicial case that it has been involved in, up to the Supreme Court. And this ranges from defendants’ rights all the way to counterterrorism. They were on the wrong side of the GPS case, where they urged the Supreme Court to allow the police to attach GPS devices to vehicles with no warrant, which meant that they could have attached GPS devices to anyone’s car for curiosity’s sake. Luckily, the court ruled unanimously that a warrant was required.

In the most recent habeas corpus case, the Obama administration endorsed and brought to the Supreme Court the notion that all U.S. intelligence assertions about a particular individual should be taken at face value and relied upon as relevant. Maybe we should be happy that the Court didn’t take the case, because if that had been made precedent at the highest level, I think we’d be in terrible shape. It’s an unbelievable position to take, especially when you look at the intelligence mess up that got us into the Iraq War. On an invisible level, this doesn’t have to do with counterterrorism, but defendants’ rights.

I think their use of the state secrets defense to prohibit people from suing when they have been wrongfully arrested or tortured has been essentially the same argument that the Bush administration used. Some of the briefs have been identical–word for word the same. Federal judges have been stunned by this. In San Francisco in the Ninth Circuit, there were some disbelieving questions put by the judges to the Justice Department official soon after Obama took office. “Are you sure this is still the position of the Justice Department?”

The administration has defended its employees from wrongdoing in cases that could have been settled without creating judicial precedent. The recent Secret Service case is an example. Steve Howards was in a mall in Colorado and saw Cheney and went up and said, “I think your policies in Iraq are disgusting” and may have touched him on the shoulder. Ten minutes later–I mean he took his kid to a piano lesson–he came back and was arrested. The court ruled that the law wasn’t clear and the agents had qualified immunity because they had no reason to know that what they were doing was a violation. But the court didn’t actually rule that it was a violation. They sidestepped the issue. The Obama administration argued for a very broad, sweeping protection of immunity for law enforcement. Not just Secret Service, but all law enforcement making an arrest on the basis of what someone said. This is not the record of an administration eager to protect constitutional rights of individual Americans.

And it goes on and on and on. During the campaign–I think it was in 2007–Obama gave a speech at the Wilson Center where he railed against National Security Letters and other means of obtaining private information from Americans who were under absolutely no suspicion of committing any crime. What’s happened since his administration? 50,000 National Security Letters a year have been issued. Every attempt to challenge them in court has been resisted by the administration. It’s a disgraceful record. And the problem is that these violations are being woven into the fabric of both law and case law so they will be much more difficult to undo than if they simply had been done at the whim of the executive branch as they were under Bush.

You could point to a few positive things, but they are only positive in the sense that Obama’s back is against the wall. For example: military commissions. In 2009, the Military Commissions Act of 2006 was revised to provide more protections for defendants. It’s not perfect, but it’s a lot better than the 2006 act was. It is an adversarial system, but it’s all in the executive branch. The judges are all military officers. The role for the judicial branch comes after the case is heard and tried and decided. And at that point, the D.C. Court of Appeals is empowered to render judgment and even go back and look at the facts.

What troubles me is that the administration has taken the position that military commissions are here to stay. Holder at Northwestern gave a speech in which there was a little noticed line about how eventually, with time, the military commissions will be respected internationally. I read that and a chill went down my spine. I thought: this is not the goal. The goal, if you’re going to have these at all, is to see them as temporary and expiring and used only in this particular post-9/11 situation. I don’t think they’re needed here or justified but if you have them, Mr. Attorney General, at least recognize them as a transitory instrument that will expire like the Nuremberg trials expired after World War II.

Guernica: The book jacket calls your new book a summons to reclaim our rights. Do you have any ideas on how to do that?

David Shipler: Everybody in America has to care about it enough and learn about it enough to see it as a problem and then advocate on behalf of individual rights, both as a broad issue and an individual situation.

Guernica: Doesn’t that mean that a vast portion of Americans have to be truly skeptical of government?

David Shipler: We are. Look at the Tea Party. But when it comes to the critical issues of civil liberties, I don’t see that. It is hypocritical for the Tea Party and other conservatives worry about big government but not worry about big government’s intrusion into the areas of individual civil liberties. Only the libertarians on the right are really concerned about that. The social conservatives rail against government’s bigness when it comes to antipoverty programs, regulation of the private sector. They want big government in certain areas and small government in other areas. Civil liberties issues seem to be off their radar for the most part.

Guernica: Sometimes I think cynically that it comes down to who they are: white, privileged people. The kinds of rights violations that affect minorities and the poor don’t happen to them.

David Shipler: You could almost think that people are saying I’m happy to give up your liberties for my security. The liberty of a terrorist is not a concern. The history shows that damage of liberty to people who are “others”–either foreigners, the politically marginalized, or ethnic minorities–begins to spill over into the violations of the majority as well. African-Americans in poor sections of the nation’s capital, whose nightly trials of being stopped and frisked without probable cause I chronicled in The Rights of the People, have a very different view of police power than affluent whites, who would be in an uproar if the police units I traveled with were to operate that way in their wealthy neighborhoods. Non-citizens, even those here legally, see draconian abuse by an immigration apparatus that runs virtually unchecked by the judicial branch. In Rights at Risk, I include a chapter on harmless, legal immigrants jailed pending deportation for crimes so minor that they received only suspended sentences in the courts, yet they are facing the life-altering sentence of permanent removal from their adopted country. We have drained all mercy from our immigration system.

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