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Diary of a Mad Law Professor | The Nation

Diary of a Mad Law Professor

Patricia Williams

In my last column, I called the expansion of profiling that has occurred since September 11 "equal opportunity." I meant it ironically, but a surprising number of people took me literally. So I want to make clear that I don't consider this upgraded frisking any kind of opportunity, nor do I think that its expansion is really the same as equality. I am also aware, as was pointed out to me, that there are people in the world who might appreciate a good cavity search, confident that this is all for their benefit. And while I understand that we have all become subject to "nothing more than" the same ministrations that visitors to maximum security prisoners go through, the fact that some think this is the best of all possible worlds strikes me as fatuous.

The billions of dollars currently being pumped into police and surveillance budgets represent an unprecedented investment in a heavily patrolled world. Such an extraordinary buildup will inevitably exacerbate questions about the limits of state force; it will require the greatest vigilance to prevent our turning into not just a police state but one big global military base. Specific categories of us will probably continue to bear a special burden--black women in airports are, according to some figures, searched more than anyone else because I, as Typical Black Everywoman, meet the description of a drug courier better than you--as in You, profiled Nation reader and Typical Ungendered White Person.

Blacks and Latinos are the profiled shape of the "war on drugs," even though the majority of actual drug abusers are young white people like Governor Jeb Bush's poor daughter, Noelle. The "war on terror" promises to be even more sweeping. For the time being, our new international, militarized police force has increased its scrutiny, from black women in airports and black men in cars, to include Middle Eastern men anywhere, Asian people who look vaguely Filipino, as well as ample Minnesota housewives actually armed with sets of silver fondue forks.

Is this better or worse? I think it's a misuse of data, often creating a false sense of security. The kind of profiling that seems to inform the majority of stops and searches is usually based on statistical relations so vague as to be useless. Such profiling, premised on diffuse probabilities about looks and dress, ethnicity or nationality, class or educational status, begs for more analysis. Otherwise it can be defeated on the one hand by guards and gatekeepers whose interpretation of looks or class status is skewed by selective and subjective prejudice and on the other hand by travelers committed to the art of disguise.

The attacks on the Pentagon and the World Trade Center were carried out by deeply rational and well-trained operatives whose tactics defied easy profiling. They looked--and were--well educated; they dressed professionally. The fact that the FBI actually had information that some of them had been involved in terrorist networks counted less in the real world than that they looked good. After all, it is true that in a very large sense sleek, well-dressed professionals commit fewer crimes than the hungry, grumpy lower classes. I have this painful recurring dream of the security guards at Logan on September 11, carelessly waving all eighteen men through, while strip searching long lines of black women having bad hair days.

I worry that we're doing the same thing with shoes: Richard Reid was able to board an airplane because he played against the expectation embedded in profiles. He looked odd enough to have been stopped and questioned, but ultimately looks had little to do with what made him dangerous. Although they were suspicious, security officials did not discover his criminal record, surely better evidence of his propensities than whether he wore a ponytail. He was finally allowed on board; he was a British citizen, and British citizens were not the subject of any profile. They searched his bag but not his shoes, because shoes were not at that point the subject of any profile. Now that we know thick-soled sneakers can be turned into weapons of mass destruction, airports spend a lot of time removing and examining them. It's likely to catch copycats, I suppose, which is not a problem to be ignored, but does anyone really believe that Al Qaeda would use shoes again? In other words, while there is, after Richard Reid, a marginal relation between shoes and bombs, the actual odds of it ever happening precisely like that again are slim to nonexistent. Indeed, what distinguishes professional operatives who calculatedly sow terror is that they take the time to play against type.

So I worry when I hear about plans to expand profiling as we now seem to practice it. I worry when I hear about plans to have our thumb prints taken, our irises scanned, our DNA plotted. How can we be putting all this work into appearances when appearances bear no necessary relation to intent? The risk of this is not just one of diminished dignity or privacy. The problem ought to have been made clear to us in the wake of "accidents" like Amadou Diallo. The problem ought to be apparent in recent news stories about the CIA having flown an unmanned surveillance craft over a street in Afghanistan. It had a night vision camera on it that caught in its scope a group of men conversing who fit a profile because one of their number was unusually tall, as is Osama bin Laden. After some consultation at the remote site where the CIA officers and their telemonitors were located, the CIA decided to bomb the group. The men were killed, but as of this writing, the CIA admits it still doesn't know who the men were. Civilians on the ground claimed that the men were townspeople scavenging for scrap metal.

This death by actuary. This profiled guilt. This trial by night vision drone. Our superlative technology permits us to listen, scan, survey and X-ray anybody and everybody in the world. But a sea of data alone won't help us if there is no higher wisdom in the final analysis. Good "intelligence" means more than eyes and ears--there must be a heart and a brain, or we will never achieve the global stability we all so desperately desire.

We have reached the point that the idea of liberty, an idea relatively recent and new, is already in the process of fading from our consciences and our standards of morality, the point that neoliberal globalization is in the process of assuming its opposite: that of a global police state, of a terror of security. Deregulation has ended in maximum security, in a level of restriction and constraint equivalent to that found in fundamentalist societies.

--Jean Baudrillard, "L'Esprit du Terrorisme,"
reprinted in Harper's Magazine, February 2002

Dear Editor,

Sorry to have missed my column deadline. I got delayed at the airport. I was intending to write about the progress of the war on war. I wanted to write about how similar are the wars of words being used in the war on terrorism, the war on crime, the war on drugs, the war on poverty, the war on illiteracy and the war on hunger. I had intended to explore the ramifications of terms like "axis of evil," "triumvirate of terror," "parasites" and the concept of "taking no prisoners" (just detainees).

If I hadn't been delayed, I meant to talk about the war stories we're telling ourselves. That the Geneva Conventions aren't such a big thing. There's just no time for Miranda rights. Civil rights are just not needed. Got to break a few rules to enforce the law.

I was thinking that maybe I am just behind the times. While I wasn't looking, we moved on to less law, more New World Order. It's sort of a military order, as it turns out. It's a religious order too, what with our taxes becoming tithes for Faith Based Initiatives, Soldiers of Fortune and born-again Armies of Compassion.

But order it is, and you've got to admit, an ordered society is a nice and tidy one. Enemies are secretly and sanitarily disposed of. The media are controlled to provide only uplifting images of clean conquest and happy, grateful multitudes. Noisy protesters are swept into neat piles, like leaves. The government encourages village snoops and urban gossips to volunteer their infinite time and darkest thoughts as a way of keeping the rest of us in line. And I don't know much about Afghanistan's Hamid Karzai, but you've got to say this for him: that bias-cut green silk tunic worn over relaxed-fit, wool/linen blend trousers has become "le must" of the fashion world. No wonder Bush is up for that Nobel Peace Prize.

Anyway, that's what I was going to write about, but I didn't have time because I had to take a flight to Philadelphia and I was late because the old man who lives on the next block put his head in my car window as I was about to drive off and he wouldn't remove it while he told me all about how he's our new neighborhood volunteer-for-victory monitor or some such, and he wanted to take an inventory right there and then of any supplies I might have in my house that would be useful in case of national emergency. Any gas masks? Generators? Cell phones? Cudgels? Axes? Prescription drugs?

"Band-Aids," I offered politely. "And could we possibly do this another time?"

"How many people live in your house?" he persisted. "And didn't I see you pushing a baby carriage the other day?"

"Not in many years," I say.

"But I'm sure it was you," he pressed. At that instant I was visited by a very clear image of him on the witness stand. He is white-haired and gentle-eyed, firm-voiced and credible. Even I wanted to believe him so much that I forgot that I had not yet been charged with anything.

When I finally got to the airport I went through the abasements of security, a ritual cleansing of the sort practiced at maximum security prisons: I removed my shoes. I took off my coat. I held out my arms. A guard in a rakish blue beret bestowed apologies like a rain of blessings as she wanded my armpits. "You have an underwire in your bra?" she asked. "You mind if I feel?"

It is hard to be responsive to such a prayer with any degree of grace. It is ceremonial, I know, a warding off of strip-search hell. "Not at all," I intoned, as though singing in Latin.

Another agent was going through my bags. He removed my nail clippers from the intimacy of my makeup pouch and discarded them in a large vat filled with hundreds of nail clippers. A proper sacrifice, I think. I imagine they will distribute them to the poor.

The agent put on rubber gloves and opened my thermos and swirled the coffee around. He removed the contents of my purse and spread it out. When he picked up my leatherbound diary and flipped slowly through the pages, a balloon of irreligiosity exploded at the back of my head, and I could feel the hair rise up, as it does sometimes, getting all militant despite my best prostrations of mousse.

"My diary?" I said as evenly as I could. "This is getting like the old Soviet Union."

"So, you visited the Soviet Union...?" he asked, a glinty new interest hardening what had been his prior languor.

Anyway, I finally got to where I was going. And on my way back from Philadelphia, I wasn't searched at all. They stopped the woman just in front of me, though, and there she stood, shoeless and coatless, with the tampons from her purse emptied upon the altar of a plastic tray. Once on the plane, she and I commiserated, and then the oddest thing happened. Others around us joined in about how invaded and humiliated they felt when searched. The conversation spread across the aisle, then to the seat in front, the row in back. It grew to about five rows of people, all angry at the overseers, all suspicious, all disgruntled and afraid. I was, I admit, strangely relieved to see that we were not only black or brown; we were men and women, white and Asian, young kids, old designer suits. There was a weird, sad kind of unity in our vulnerability, this helplessness of ours. But there was a scary emotional edge to the complaining, a kind of heresy that flickered through it too. What a baffled little coterie we were. Equal opportunity at last.

Anyway, dear editor, that, in short, is why this is not a column. I was having a really bad hair day.

In this most emotionally charged of times, I think that many of the moral issues we face are overlaid by an oft-expressed tension between the need for security and the full protections of human rights. It is always expressed as a tension, freedom as opposed to security. It is a false dichotomy but understandable, given how afraid we all are. And so we limit our sights to the need for good policy, good intelligence and strong, democratically inclined, diplomatically gifted leaders.

But I am also a lawyer, and a child of the civil rights era, which was, a bit like these times, a dangerous time, troubled by terrorizing outlaw behavior, a violent time. Yet what guided us, black and white, men and women, minority and majority, through that time was a determined appeal and, ultimately, adherence to principles of morality, justice and law. Dr. King's appeal to a transformative progressive society, to what he referred to as The Beloved Community, was of course an overtly theological argument, grounded in a love of all humanity. But it was also a metaphor, and that metaphor was grounded in a legal case, in a series of legal cases that held steadfastly to notions of fairness, equality and due process of law. The legal and political triumphs of the civil rights era remain a monument to America's best ideals.

Those times too were fraught with passion and grief. There were those who thought that Dr. King's work for racial equality was too radical, too deeply subversive, or unpatriotic. There were those who thought his opposition to American policy in Vietnam merited the response Love it or leave it. Similarly, there are those who have taken George W. Bush's oft-repeated statement--originally a warning to Iraq, as I recall--of "you're either with us or against us" and applied it broadly and inappropriately to men and women of conscience who express their concern that international conventions and norms of human rights be scrupulously applied in the battle against Al Qaeda.

Trust, don't ask, some have said. Say something positive or shut up. I worry a lot about the predominance of flat "either-or" dualisms that by their very syntax eliminate the middle ground so necessary to political debate. Love it or leave it. But Dr. King loved his country, and there was no "or" about it. He did not leave America but worked to impart a legacy that changed it and the world for the better. He appealed to a society that is committed to unity and yet vaunts individual freedom, including the freedom to dissent.

These tensions are often placed like roadblocks: security versus freedom, community versus dissent. That pervasive sense of opposition was a challenge for Americans in Dr. King's time, and it is a challenge for Americans now. And because the United States is a model others copy as well as a global force to be reckoned with, the citizens of the world are, one by one, having to resolve these tensions as well. As Dr. King said, "Civil rights"--or human rights I think he would add in today's global context--"civil rights is an eternal moral issue..."

Whatever the issue, whatever the time, we must resist a mindset that defines those who are "with us" as those who accept all policies as untouchable, all military action as automatically legitimate, all criticism as giving aid and comfort to the enemy. Otherwise we consign people who are engaged in the essence of democratic debate to the conceptual dustbin of those who are "against us." You're either on board as a team player or (according to the last few days of the New York Post alone) you're a brainless, overintellectualizing, group-thinking, anarchist, socialist, communist, stalinist, nihilistic, solipsistic, atheistic, politically correct, race-card-playing feminazi crackpot.

I sometimes wonder if we've forgotten who the enemy is.

But it is not unpatriotic to question and argue about our public policy; it's a duty of citizenship. It is not disrespectful to the Republic to ask, when our Defense Secretary says the men held in Guantánamo Bay are receiving better treatment than the Taliban ever gave their prisoners, what that means precisely. That they have not yet been beheaded? Or that the norms of the Geneva Convention and the Constitution are being rigorously observed?

I worry too about the degree to which we keep referring to these enemies as The Evil Ones or The Bad Guys--such odd terms, as though our leaders were speaking to very young children. By this, Al Qaeda is placed in an almost biblical narrative, ready to be smote and cast out. In this model, giving The Evil Ones so mundane a forum as a trial is literally "courting" the devil. While this sort of embedded language has certainly galvanized the people in a time of great crisis, I don't believe it's a useful long-term model for a democratic secular government trying to fight real political foes, particularly stateless enemies who are religious zealots in their own right. This sort of narrative obscures the adult reality that they are enemies, not viruses. They are humans, not demons. They are criminals, not satanic extraterrestrials. They may indeed be our New Age Goebbelses and Goerings, but we did not put Nazi war criminals in cages. We brought them to justice.

Given all this we will need all the thoughtful voices we can get to help our beleaguered leaders figure out a world that is growing more mobile, more diasporic, more riven by racism, xenophobia, anti-Semitism (and I mean anti-Semitism in the broad sense of prejudice against all Semitic peoples, including Jews, Arabs and some Asians), religious intolerance, economic disparity and struggles for land. Indeed, recent tensions are such that some are calling this a "clash of civilizations." This too is something we should be wary of. Organized crime syndicates--whether the Ku Klux Klan in the civil rights era or Al Qaeda now--do not a civilization make.

As we move into Black History Month, it is good to remember that Dr. King's message was far more complex than the naïve rosiness to which he's often reduced. He insisted on equal protection even for those we do not like. He insisted on due process of law even for those whom we have reason to fear. And he demanded that we respect the humanity even of those we despise.

In these heated times, what does the word 'fundamentalist' mean? Well, it all depends on whom you ask.

As the country tilts toward war, media voices are craven in their obsequiousness.

What plagued the O.J. Simpson trial—corruption, malfeasance and a breakdown of the rule of law—is exactly what the 'war on terror' is achieving in its blind quest to hold Bin Laden to account.

George W. Bush wants to try terror suspects in in secret military courts. Guilt is presumed over innocence.

We can't allow fear to erode commitment to our constitutional liberties.

Author

Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in...

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