Diary of a Mad Law Professor | The Nation

Diary of a Mad Law Professor

Patricia Williams

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.

It is hard to write a column like this under the present circumstances. It is hard to comment on what is happening in the world if the military regulates everything. And yet it is impossible not to write about this moment when civil rights and liberties seem under attack from both within and without. "Civil libertarians should not become Luddites," says Alan Dershowitz, who spent most of the past decade railing against identity politics. These days, he's suggesting that we loosen up and get national identity cards. Sure it's been used by repressive regimes the world over, he admits, but "the reasons for not having them don't really apply here."

The gently centered Quaker part of me is trying hard to calm the Help!-Flee!-We're-Going-to-Hell-in-a-Handbasket! part of me. I do that by settling down to the task of stringing random notes together, a scattered kind of witness.

First, we are at war. Although no one but the Pentagon admits to knowing what is happening, one sign is the dark whumpa-whumpa sound of the quiet, low-flying surveillance planes. Last night, when my son had finished practicing "Three Blind Mice" on his trombone, my ears were filled with a dull reverberation somewhat greater than that which ordinarily troubles the air in the wake of his prodigious renditions. We looked out the window and saw three large lights on a dark aircraft that was floating along only a little way above the treetops. It looked as though aliens were landing--it slid quietly overhead like something out of The Empire Strikes Back. "They're on the watch for submarines," said a friend whose father is in the military. So I know we are at war.

Even my son has been recruited. He came home from school and looked for ways to earn a dollar. "I need money to send to George Bush," he explained. "Come wha...?" I asked. It turned out he was answering the President's call for every child in America to donate a dollar to help feed refugee children. "I think this money is probably for UNICEF," I said. "No," insisted my son, who has heard a little about a lot. "George Bush is going to use it to give Afghan children some social security."

Second, our public health system is imploding. You can tell how panicked officials are by their bizarre yet perky incoherence in the face of emergency. "No cause for worry," they keep saying while trotting out the law of averages, like a schoolboy by the ear, to show how much more dangerous it is to drive a car. "Since 1975 there has been only one case...uh, make that two...uh, three...oops, a fourth...uh, maybe a fifth..." They spent the last week proclaiming that even though they had closed down Congress and the Capitol building, "no one should worry"--that phrase again--because there was no way that the bacterium "would present itself outside a sealed envelope."

They had to revise that assessment, of course, after four people at the Brentwood Postal Facility in Washington, DC, came down with the inhaled form. Since then, the government says it's going to set things right by mailing nearly every US household a postcard with reassuring words and information listing the characteristics of missives worthy of suspicion. They will be mailing this bit of reassurance, presumably, from a large central postal facility. I wake up in the middle of the night imagining spores hitching rides on the coattails of mailmen as they fan out from our nation's capital and spread across the homeland. I know that this is an irrational thought, but still--it wakes me up. A former student tells me that he was sitting around at his cigar club (doesn't it just beg for parody? But... another time) and everyone was puffing away and asking each other how many units of Cipro they had "scored." "It's the new Ecstasy," he marvels. I see it as more like the new Agony.

Third, the word "homeland" has burrowed its way into ordinary conversation and multiplied with astonishing rapidity. It is not just the curious name of an office merging police and intelligence functions. It is a lowercase reference to purple mountains' majesty and all those fruited plains. Suddenly, "America the Beautiful" has become some sort of bad translation from the German. Like "Fatherland" or "empire," labels channel unspoken allegiances. I wonder about the line-drawing such an odd term was calculated to evoke--it sounds at once intimate and abstract--like the good-guy quadrant in some strategic computer game? Like the Bush team's attempt to sound epic? Like some effort to denationalize and fuse enemy status with that of domestic criminality--as in home-wreckers, home invaders, domestic abusers? "Homeland Security" is the new office of what they keep calling "psy-ops," after all. There's gotta be an angle.

The thing that worries me most about this time is how hard it is to talk about anything but fear. The fight has been framed as a war with "terror," a battle against an unruly if deadly emotionalism, rather than a war against specific bodies, specific land, specific resources. A war against terrorism is the inverse of a war "for" courage. It is a war of the mind, so broadly defined that the enemy becomes anybody who makes you afraid.

National Public Radio broadcast a conversation with Dr. Jerrold Post, a professor of something called "political psychology." Dr. Post discussed passages from an Al Qaeda training handbook in which operatives are advised to "blend in," to stay clean-shaven, not to talk too much over coffee and to pay their parking tickets in a timely fashion. The conversation was a classic bind in which the implied message is to trust no one, just tell the authorities every move your suspiciously average neighbors make.

It seduces, this corrosive distrust. Call me a Luddite, but I think this is a formula for panic. There are, of course, perfectly rational reasons to be afraid just now, but our unalloyed ideology of efficiency combined with a traumatic amount of actual bureaucratic bumbling has left us poised at the gateway of an even more fearsome world in which the "comfort" and convenience of high-tech totalitarianism gleam temptingly, yet in which our American-ness endures only with hands up! so that our fingerprints can be scanned, and our nationalized identity scrutinized for militarily defined signs of abnormal normativity.

As I write, the world is filled with fear. I am having one of those reactions that psychologists describe as a stress response. I suppose I'm not alone, though. A friend calls and says, "You hung a flag yet? Anyone who's been to Cuba, you better hang a flag." "Cuba?" I ask, startled. "You don't mean that weeklong human rights trip seventeen years ago?"

"You poor naïve child. I'm sending you a big one. Hang it on your porch."

In the newspaper, I read of Muslims who are shaving their beards and removing their veils. I read of blacks who are embracing suspect profiling. There's an unsubstantiated rumor on the Internet of Barney Frank hugging Strom Thurmond just before he fainted.

"It's that list they'll be drawing up in the Office of Homeland Security," explains a fellow paranoid as we shop for bottled water. "Nobody wants to be on that." Then she points out the physical resemblance between Tom Ridge and J. Edgar Hoover. She believes in reincarnation. I do not, but...it really is uncanny.

Another friend calls to say she's been reading the Washington Post. "Sally Quinn's got gas masks for everyone in her family. Her doctor gave her a stock of antibiotics, enough for her and all the servants." The word "triage" begins to rise uncomfortably in my mind. Who gets to stockpile antibiotics in this new world order? If I went to a doctor for a little "extra" medication, he'd turn me in for drug dealing. If minorities suffer from unequal access to medical treatment now, what happens when panicked hordes make a run on hospitals for limited supplies of anthrax vaccine?

Not that any of this will do any good anyway, I suppose. My mother reminds me of the bomb shelters that sprang up during the 1950s. "I worried too," she said. "But you can't control this sort of thing on an individual level. Will you never go to the beach for fear of being too far from the shelter? Will you never take off the gas mask for fear of smelling the roses?" A friend of mine who's a psychologist says that it is precisely the terrifying lack of control that is sending so many people over the edge. She says that lots of fragile sorts have been showing up at Bellevue to apologize for having driven a plane into the World Trade Center. The less fragile ones have been busy actually hijacking Greyhound buses and rushing into cockpits in states of extreme agitation.

On the news, crusty old senators disclose that they have participated in various government war games, in which they role-played all sides of the conflict in the event of hypothetical disasters. The crusty old senators worry me; they move stiffly and are so relentlessly formal that they refer to themselves in the third person, like Bob Dole. I suspect them of playing these games in the groves of the Bohemian Club, with the expectation that whatever happens they will retire to the bar for whisky sours afterward. All this is a too glib way of saying that I simply don't see them coming up with quite the same strategies and outcomes that Al Qaeda might.

I think that if the Pentagon really wants to role-play doomsday scenarios here at home, they need to lock Jerry Falwell in a small room with Elián González's Miami relatives, G. Gordon Liddy, Louis Farrakhan, Jack Kevorkian, Charlton Heston, Al Sharpton, Kenneth Starr and a horde of neglected, riot-prone, inner-city kids who under the circumstances feel as though they have nothing left to lose. We get O.J. Simpson to keep a body count and Larry King to report what's happening. We give them $43 million worth of weaponry (the sum George Bush, as recently as August, thought would be a nice amount to send to the Taliban), an airdropped bundle of peanut butter sandwiches and ten minutes to reproduce Afghanistan's religiopolitical structure. Does anyone seriously doubt that this much of an experiment would end up destabilizing all of human history?

"People are screaming through the cracks," says a colleague. I had never heard that expression before. She says it means that people are too scared to say what they mean when you ask them to speak on the record. "But if you ride the buses, talk to truck drivers, go to church, hang out with teenagers in the pool hall, they're terrified of this war. No one knows why all this is happening."

It is true that everyone has a different conspiracy theory of this war. When I first heard of the bombing, I thought it was retribution for Timothy McVeigh's execution and that "the terrorists" had chosen New York because it's a city of miscegenated minorities. A Jewish friend was equally certain that New York was chosen because "it's a Jewish city." A stockbroker friend finds it obvious that "they" were out to destroy world trade and global economics. Pat Robertson blames Bill Clinton. A Christian evangelical friend says that it's all about "the rapture," which is apparently that moment just short of end-time when the sanctified will be transported directly to heaven and the rest of us will perish. Maureen Dowd, Washington's favorite material girl, flips mournfully through the Neiman Marcus Christmas catalogue and concludes that it's because foreign agents don't want us to enjoy our "stuff." The White House blames "not all Muslims." And Ari Fleischer blames Bill Maher.

There's a brilliant trilogy by children's author Philip Pullman titled His Dark Materials. The tale features armored bears enlisted in the fight between good and evil--great clanking white bears who smash through enemy armies, clumsy but immense in their power. In my mind, I keep seeing those big armored bears as American warplanes bombing away, strong and accurate and deadly. But I am also visited by images of "the network" that they're fighting as more of a global spider web, very thin, fine lines of connection--tough, resilient and almost invisible. I keep worrying that armored bears aren't much use against a foe like that. The bears are entirely capable of wreaking havoc in a given spot, but the spider web is small, silent, hard to see--drawing strength from structure, not from size; from belief, not from force. And as long as we do not come to terms with the more subtle nature of that kind of adversary, I will not be able to visualize any good end in sight.

The distinguishing feature of most fundamentalist belief systems is a literal conception of the relation between words and meaning.

Nine times the Space that measures Day
      and Night
To mortal men, he with his horrid crew
Lay vanquisht, rolling in the fiery Gulf
Confounded though immortal: But his doom
Reserv'd him to more wrath...
         --John Milton, Paradise Lost, Book I

As a million impoverished Afghans flee toward the borders of Iran and Pakistan, as the reconfiguring of civil and human rights is debated in Congress, as the CIA considers reinstating the kinds of training camps in which Osama bin Laden and Saddam Hussein learned so much before they Fell From Grace, as rumor and disinformation swirl through our media and the Internet, and as the world readies itself for war against murkily located and confusingly defined enemies, I find no words for this great sadness. I offer instead cautionary notes from my clippings of the Gulf War ten years ago, during the presidency of George Bush the Elder.

January 8, 1991: The New York Times reports that the Defense Department, "in obtaining permission to give experimental drugs to American troops in the Persian Gulf, is about to violate the Nuremberg Code, one of the primary moral documents to emerge from World War II.... Since Nuremberg, no government has officially attempted to justify research on competent adults without their informed consent--that is, not until our government said exceptions would be permitted so that specific unapproved drugs and vaccines could be administered to the troops without their consent.... Under the new regulation, whatever experimental drug or vaccine military commanders and the FDA think is in the soldiers' best interest becomes obligatory 'treatment.'"

January 17, 1991: The airstrikes have numbered more than 1,000 in fourteen hours. No word about Iraqi casualties. On TV there are reports of massive anti-American demonstrations throughout the Middle East. A Washington expert on the Near East says that provided we look like the winner, he doesn't think the "Arab street" will matter. He says that these countries aren't democracies, so their leaders don't have to listen to popular opinion, though if it becomes drawn out, then the "Arab street" will be "more of a factor." This is followed by an interview with the publisher of something called Petroleum Intelligence Weekly, who explains the war from "an oil policy point of view."

On another channel, a newscaster describes the bombing of Baghdad as a "star-spangled reign of terror." A foreign policy expert hails Desert Storm as ushering in a new period in which "there will be no more wars," and in which it will be clear that "America's sword is the mightiest."

January 18, 1991: At least 2,000 sorties every day. In today's New York Times [p. A9], there is an interview with Colin Powell: "Q.: 'Do we have any estimate how many Iraqi soldiers might have been killed in the bombings?' Powell: 'No, I'm not able to answer that at this time. It is a comprehensive campaign with, as I've said many times, air, land and sea components. And we have thought it out. It will unfold over a period of time. But I can't answer your question directly...'" On TV, President Bush says war is "never cheap or easy." In response to concern about the protests in "the Arab world," Bush says that there is no single Arab world, and that most of the Arab world is behind the United States.

January 20, 1991: The Gulf War costs between $150 million and $1.6 billion a day, depending on the intensity of fighting. Dick Cheney is going to ask Congress for $20 billion more for next year's budget, in addition to the $295 billion already in next year's defense budget.

January 21, 1991: A press conference at the Defense Department. I guess the questions don't matter when the answers are: "You're into a delicate area." "I'd like to be more forthcoming." "I can't tell you." "I will absolutely not talk about submarines." "We can't say with certainty." "The answer to that is militarily insignificant." "I can't quantify that for you." "I would like to answer that for you, I truly would, but it would be inappropriate." "I can't confirm that." "All I can do is give you the official position." "It would lead one to believe..."

February 3, 1991: The New York Times reports that "after more than two weeks of war in the Persian Gulf involving the heaviest sustained bombing in history, the Pentagon is avoiding any estimate of Iraqi deaths so far.... The overall death toll could be as low as a few thousand or more than 10,000.... [According to Loren Thompson, deputy director of the national security program at Georgetown University] 'General Schwarzkopf's main concern is that when you get into the body-count business, you end up perverting the bomb damage assess.... You have a talisman, a single measure of success that really isn't related to whether you are winning the war.' At the same time, he said, when damage is listed in terms of tanks destroyed or airfields cratered, as the Pentagon has done, 'you avoid talking about lives lost, and that serves both an esthetic and a practical purpose.'"

March 15, 1991: The Washington Post reports 70 percent of the bombs dropped on Iraq and occupied Kuwait missed their target.

March 22, 1991: The Pentagon lists 148 American deaths (thirty-five of those from "friendly fire"), but omits any mention of Iraqi deaths. The Wall Street Journal reports that General Schwarzkopf has "privately given" President Bush estimates that "at least" 100,000 Iraqis lost their lives in six weeks of fighting.

In the hushed wake of all the luminous, precious lives snuffed out in the World Trade Center, I believe a so-called body count neither adds to nor subtracts from the greatness of our grief--nor will it always even be the only moral measure if our end is justice. On the other hand, ignoring altogether great human cost in deference to the "aesthetic" of efficient war--that is a great wrong, not easily forgiven, and one whose price could keep us spiraling in infinite bouts of vengeance and revenge with those who wonder, like Milton's Stygian Counsel: "Will he, so wise, let loose at once his ire,/Belike through impotence, or unaware,/ To give his Enemies their wish, and end/ Them in his anger, whom his anger saves/ To punish endless...."

Although the terrorist attacks are—and will continue to be for some time—at the forefront of the world's attention, we must remember that the struggles of yesterday still go on.


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