News and Features
Anyone looking for evidence that the death penalty should be
abolished need only look at the case of Zacarias Moussaoui, the
so-called twentieth hijacker, now on trial for his life for allegedly
The Jenin refugee camp's jagged concrete hillside of
homes-turned-into-graves has yet to yield all its secrets.
While it might appear to be sweet revenge for the Inquisition, it is
best to resist the impulse to burn some Catholic priests--and the
cardinals who covered up their criminal activities--at the
Rudolph the Red-Handed Terrorist
Some prestigious Wall Street firms may have been involved in a Ponzi scheme.
A long time ago I dated a 28-year-old man who told me the first time we
went out that he wanted to have seven children. Subsequently, I was
involved for many years with an already middle-aged man who also claimed
to be eager for fatherhood. How many children have these now-gray
gentlemen produced in a lifetime of strenuous heterosexuality? None. But
because they are men, nobody's writing books about how they blew their
lives, missed the brass ring, find life a downward spiral of serial
girlfriends and work that's lost its savor. We understand, when we think
about men, that people often say they want one thing while making
choices that over time show they care more about something else, that
circumstances get in the way of many of our wishes and that for many
"have kids" occupies a place on the to-do list between "learn Italian"
Change the sexes, though, and the same story gets a different slant.
According to Sylvia Ann Hewlett, today's 50-something women
professionals are in deep mourning because, as the old cartoon had it,
they forgot to have children--until it was too late, and too late was a
whole lot earlier than they thought. In her new book, Creating a
Life: Professional Women and the Quest for Children, Hewlett claims
she set out to record the triumphant, fulfilled lives of women in
mid-career only to find that success had come at the cost of family: Of
"ultra-achieving" women (defined as earning $100,000-plus a year), only
57 percent were married, versus 83 percent of comparable men, and only
51 percent had kids at 40, versus 81 percent among the men. Among
"high-achieving" women (at least $65,000 or $55,000 a year, depending on
age), 33 percent are childless at 40 versus 25 percent of men.
Why don't more professional women have kids? Hewlett's book nods to the
"brutal demands of ambitious careers," which are still structured
according to the life patterns of men with stay-at-home wives, and to
the distaste of many men for equal relationships with women their own
age. I doubt there's a woman over 35 who'd quarrel with that. But what's
gotten Hewlett a cover story in Time ("Babies vs. Careers: Which
Should Come First for Women Who Want Both?") and instant celebrity is
not her modest laundry list of family-friendly proposals--paid leave,
reduced hours, career breaks. It's her advice to young women: Be
"intentional" about children--spend your twenties snagging a husband,
put career on the back burner and have a baby ASAP. Otherwise, you could
end up like world-famous playwright and much-beloved woman-about-town
Wendy Wasserstein, who we are told spent some $130,000 to bear a child
as a single 48-year-old. (You could also end up like, oh I don't know,
me, who married and had a baby nature's way at 37, or like my many
successful-working-women friends who adopted as single, married or
lesbian mothers and who are doing just fine, thank you very much.)
Danielle Crittenden, move over! Hewlett calls herself a feminist, but
Creating a Life belongs on the backlash bookshelf with What
Our Mothers Didn't Tell Us, The Rules, The Surrendered
Wife, The Surrendered Single (!) and all those books warning
women that feminism--too much confidence, too much optimism, too many
choices, too much "pickiness" about men--leads to lonely nights and
empty bassinets. But are working women's chances of domestic bliss
really so bleak? If 49 percent of ultra-achieving women don't have kids,
51 percent do--what about them? Hewlett seems determined to put the
worst possible construction on working women's lives, even citing the
long-discredited 1986 Harvard-Yale study that warned that women's
chances of marrying after 40 were less than that of being killed by a
terrorist. As a mother of four who went through high-tech hell to
produce last-minute baby Emma at age 51, she sees women's lives through
the distorting lens of her own obsessive maternalism, in which nothing,
but nothing, can equal looking at the ducks with a toddler, and if you
have one child, you'll be crying at the gym because you don't have two.
For Hewlett, childlessness is always a tragic blunder, even when her
interviewees give more equivocal responses. Thus she quotes academic
Judith Friedlander calling childlessness a "creeping non-choice,"
without hearing the ambivalence expressed in that careful phrasing. Not
choosing--procrastinating, not insisting, not focusing--is often a way
of choosing, isn't it? There's no room in Hewlett's view for modest
regret, moving on or simple acceptance of childlessness, much less
indifference, relief or looking on the bright side--the feelings she
advises women to cultivate with regard to their downsized hopes for
careers or equal marriages. But Hewlett's evidence that today's
childless "high achievers" neglected their true desire is based on a
single statistic, that only 14 percent say they knew in college that
they didn't want kids--as if people don't change their minds after 20.
This is not to deny that many women are caught in a time trap. They
spend their twenties and thirties establishing themselves
professionally, often without the spousal support their male
counterparts enjoy, perhaps instead being supportive themselves, like
the surgeon Hewlett cites approvingly who graces her fiancé's
business dinners after thirty-six-hour hospital shifts. By the time they
can afford to think of kids, they may indeed have trouble conceiving.
But are these problems that "intentionality" can solve? Sure, a woman
can spend her twenties looking for love--and show me one who doesn't!
But will having a baby compensate her for blinkered ambitions and a
marriage made with one eye on the clock? Isn't that what the mothers of
today's 50-somethings did, going to college to get their Mrs. degree and
taking poorly paid jobs below their capacities because they "combined"
well with wifely duties? What makes Hewlett think that disastrous recipe
will work out better this time around?
More equality and support, not lowered expectations, is what women need,
at work and at home. It's going to be a long struggle. If women allow
motherhood to relegate them to secondary status in both places, as
Hewlett advises, we'll never get there. Meanwhile, a world with fewer
female surgeons, playwrights and professors strikes me as an infinitely
inferior place to live.
Alan Dershowitz prides himself on his credentials as a civil
libertarian, and to judge by most of the essays in his latest book,
Shouting Fire: Civil Liberties in a Turbulent Age, he has good
reason to do so. The Harvard law professor has built a considerable
reputation on his defense of free speech, due process and the separation
of church and state, to say nothing of his propensity for controversial
clients and clamorous talk shows. Shouting Fire is a pastiche of
fifty-four essays, some of them new, most of them not, the earliest
dating from 1963. The impetus for the collection appears to be at least
in part a desire to reassert the importance of civil liberties, even in
the face of such national security threats as those posed by the events
of September 11 and their aftermath. Moreover, Dershowitz admirably
offers what rights advocates rarely do: a philosophical grounding for
civil and political rights beyond the mere positivist assertion that
"that's the law."
If this were all Dershowitz had done in Shouting Fire, the book
might have received its share of kind reviews and headed off to
Remainderland. But in less than two of the book's 550 pages, he manages
to guarantee the collection a longer shelf life. For in an addendum to a
1989 article in the Israel Law Review, Alan Dershowitz, civil
libertarian, champion of progressive causes, counsel to human-rights
hero Anatoly Shcharansky, makes a case for torture or, more exactly, for
the creation of a new legal device that he dubs a "torture warrant." And
then, through a deft combination of newspaper editorials, public
appearances and an extended interview on 60 Minutes, Dershowitz
has expanded upon that proposition in a way designed to make talk of
torture routine and, not incidentally, banter about his book robust.
Dershowitz's proposal, therefore, deserves careful scrutiny, not only
because it comes from a respected voice but also because sources in the
FBI have floated the possibility that torture will be applied against
prisoners or detainees who refuse to tell what they know about
terrorists. Last October 45 percent of Americans approved of that.
Today, thanks to Dershowitz and others having lent the idea the patina
of respectability--Jonathan Alter writing in Newsweek, Bruce
Hoffman in The Atlantic--the number may be higher.
Dershowitz starts with the familiar scenario from every freshman
philosophy class, the case of the ticking bomb. Suppose the authorities
are holding a suspect who knows where a ticking bomb is located, a bomb
that will kill hundreds of people if it explodes. Would they be
justified in torturing the suspect to procure the information and
thereby save innocent lives?
Dershowitz contends that whether we like it or not, the officials would
inevitably resort to torture and, what's more, the vast majority of us
would want them to. But because any officer who did so might be subject
to prosecution, despite the availability of the common law defense that
a crime may be justified if it is necessary to prevent a greater evil,
the onus of responsibility should not be left on the individual
official. Instead the authorities should apply to a court for a "torture
warrant," similar to a search warrant, so that the courts must bear the
burden of authorizing torture or the consequences of failing to do so.
In another context Dershowitz has offered the reassurances that "the
suspect would be given immunity from prosecution based on information
elicited by torture" and that "the warrant would limit the torture to
nonlethal means, such as sterile needles being inserted beneath the
nails to cause excruciating pain without endangering life."
Despite these precautions, however, Dershowitz's proposal has not met
with universal acclaim, and in recent weeks he has appeared to be
distancing himself from it. In a February 17 letter to The New York
Times Book Review responding to a critical review of Shouting
Fire, Dershowitz claims that "the only compromises [with civil
liberties] I suggest we should consider, and not necessarily
adopt, relate directly to protecting civilians against imminent
terrorist attacks [emphasis added]." But there is no hint on the two
relevant pages of Shouting Fire that Dershowitz's "torture
warrant" proposal is merely hypothetical. Indeed, in commenting on the
decision by the Supreme Court of Israel that prompted the idea in the
first place, he chastises the court for leaving interrogating officers
vulnerable to prosecution if they use torture and says, "The Supreme
Court of Israel...or the legislature should take the...step of requiring
the judiciary to assume responsibility [for torture] in individual
cases." Dershowitz is stuck with his "torture warrants" just as surely
as Arthur Andersen is stuck with its Enron audits.
So what, after all, is wrong with that--other than the fact that torture
violates both the Convention Against Torture, which the United States
ratified in 1994, and the Constitution? The first thing that is wrong is
that the act of torture, unlike that of searching for something, is in
itself both universally condemned and inherently abhorrent. Under
international law, torturers are considered hostis humani
generis, enemies of all humanity, and that is why all countries have
jurisdiction to prosecute them, regardless of where the torture took
place. The fact that a US court or legislature might offer its approval
of the act does not abrogate that internationally recognized standard
any more than a court in Singapore that authorizes the jailing of a
dissident journalist makes Singapore any less guilty of violating the
rights of a free press. Tyrannical governments often try to cloak their
human rights violations in national statute. It is interesting, however,
that no country has ever legalized torture except, arguably, Israel,
until the Israeli Supreme Court struck down the provision for the use of
"moderate physical pressure," and even while that provision was on the
books, the Israeli government argued vehemently that such pressure was
not the equivalent of torture.
To see more clearly the shoals upon which the "torture warrant"
flounders, consider this. There is no doubt that despite official
efforts to eradicate it, police brutality is practiced in many US
jurisdictions and probably always will be. Some police officers will
claim, in their more candid moments, that the use of excessive force is
often the only way to protect the lives of officers and the general
public. Why ought the police not be able, therefore, to apply for
"brutality warrants" in specialized cases? Why ought police officers who
believe that a little shaving of the truth on the witness stand is worth
sending a bunch of drug pushers to prison, thus protecting hundreds of
youngsters from a life of drugs and crime, not be able to seek
"'testilying' warrants"? Why ought correctional officers who argue that
allowing dominant male prisoners to rape other prisoners helps preserve
order among thugs and thus protects the lives of guards not be allowed
to seek "warrants to tolerate prisoner rape" in particularly dangerous
situations? The answer in all cases is the same: because the act itself
(brutalizing citizens; committing perjury; facilitating rape) is itself
abhorrent and illegal. Dershowitz's analogy to search warrants fails
because, while a particular search may itself be illegal, the act of
searching is not ipso facto unethical or a crime. For a society
to start providing its imprimatur to criminal acts because they are
common or may appear to provide a shortcut to admirable ends is an
invitation to chaos.
But even if torture were a licit activity under some circumstances,
there are very good pragmatic reasons to reject its use. If the ticking
bomb scenario were designed only to establish the abstract moral
calculus that the death of X number of people constitutes a greater evil
than the torture of one, it would certainly be possible to make a
plausible utilitarian argument for torture. The problem is, however,
that the proponents of the ticking bomb scenario want it to serve as the
basis of public policy, and unfortunately reality rarely conforms to
scenarios and life doesn't stop where the scripts do. How strange that
though the ticking bomb scenario has been used for decades to justify
torture, its defenders are unable to cite the details of even one
verifiable case from real life that mirrors its conditions.
Perhaps, upon reflection, that is not so strange. For what the ticking
bomb case asks us to believe is that the authorities know that a bomb
has been planted somewhere; know it is about to go off; know that the
suspect in their custody has the information they need to stop it; know
that the suspect will yield that information accurately in a matter of
minutes if subjected to torture; and know that there is no other way to
obtain it. The scenario asks us to believe, in other words, that the
authorities have all the information that authorities dealing with a
crisis never have.
Even aficionados of ticking bomb torture agree that its use can only be
justified as a last resort applicable to those we know to a moral
certainty are guilty and possess the information we seek. That 45
percent of Americans who reported last October that they approved of
torture were approving of the "torture of known terrorists if they know
details about future terrorist attacks." But how do we know all that?
The reason torture is such a risky proposition is exactly because it is
so difficult to tell ahead of time who is a terrorist and who is not;
who has the information and who does not; who will give the information
accurately and who will deceive; who will respond to torture and who
will endure it as a religious discipline. The fact is that many people
suspected of being terrorists turn out not to be, as our experience
since September 11 has proven so well; that, historically, many of those
subjected to torture are genuinely ignorant of the details the
authorities seek; that the information protracted with torture is
notoriously unreliable; and that torture almost always takes a long
time--days and weeks, not hours and minutes--to produce results. Torture
is of course extraordinarily common. Almost three-fourths of the world's
countries practice it. But not to find ticking bombs. To punish
political opponents. To intimidate their allies. To cow a citizenry. The
ticking bomb scenario in its purest form is a fantasy of "moral" torture
all too easily appropriated by tyrants as an excuse to justify the more
And if the ticking bomb scenario is a fantasy, the Dershowitzian
addition of a "torture warrant" makes it into a chimera. Here is a
situation Dershowitz envisions for the warrant's use:
Had law enforcement officials arrested terrorists boarding one of the
[September 11] airplanes and learned that other planes, then airborne,
were headed toward unknown occupied buildings, there would have been an
understandable incentive to torture those terrorists in order to learn
the identity of the buildings and evacuate them.
This assumes that those law enforcement officials would have had time in
the hour and a half or so between the boarding of the planes and the
impact on their targets to (1) take the suspects into custody; (2)
ascertain with enough certainty to warrant torture that the suspects
were (a) terrorists who (b) had the needed information in their
possession; (3) apply to a judge for a torture warrant and make the case
for one; (4) inflict torture sufficient to retrieve the necessary facts;
(5) evaluate the validity of those facts in order to be assured that no
innocent plane would be identified and blown out of the sky; and (6)
take the steps required to stop or mitigate the terrorist act. Perhaps
after John Ashcroft has been Attorney General another three years, law
enforcement will have learned to cut enough corners of the legal
niceties to accomplish this feat. But at the moment, given the INS, Tom
Ridge, bureaucratic infighting and all, it seems unlikely.
Which leads to the question of whether, if the United States were to
become the first country in the world to adopt "torture warrants," they
would make us safer. That, after all, is presumably the only ultimate
rationale for their use. But here is another place where the traditional
ticking bomb case explodes in the face of reality. For it assumes that
there are no further detrimental consequences once the victims of the
bombing are saved--no retaliatory strikes, for example, by the torture
victim's comrades to pay back the inhumanity done to their brother. It
doesn't take much imagination to see how quickly officially authorized
torture would diminish the credibility of a struggle against terrorism
that is being fought in the name of defending American values and the
rule of law. How many people would need to be tortured before our allies
threw up their hands in disgust and our adversaries started celebrating
their moral victory? How many innocent people would have to be
brutalized before their resentment and that of their friends and family
would spill over into violence? In his book No Equal Justice law
professor David Cole has shown how mistreatment of the innocent by US
police can alienate entire communities and result in increases in crime.
Torture, similarly, is a sure-fire way to manufacture an embittered
opponent of the United States where there was none before. And make no
mistake that innocent people would be tortured, warrant or no, for,
after all, if close to 100 innocent people have been convicted of
capital crimes and sentenced to death in this country despite all the
protection our legal system offers, how much more likely is it that
miscarriages of justice will flow from the pen of a single judge?
Whatever leadership the United States can claim in the world is
intimately linked to our practice of values universally regarded as
fundamental to a civilized people.
So how could a distinguished human rights advocate like Alan Dershowitz
have strayed so far from the mark? Part of it may have to do with the
philosophical basis for rights that he sketches in the beginning of his
book. Wisely rejecting the notions that rights are derived from deity or
natural law and yet unconvinced that positivism alone provides
sufficient heft for rights claims, Dershowitz adopts what he calls the
"experiential-advocacy approach." In effect, he says, we should look to
history to identify prototypical instances of injustice (slavery, for
example) and then, based upon that human experience, construct a set of
rights--free speech, due process--that are most likely to bring about
the type of society in which we would want to live. So far, so good.
Human rights are assuredly derived from human experience.
But what if you disagree with my vision of the good society? The best we
can do, Dershowitz insists, is to try to argue you out of your myopia:
"That is all I can do," he says. "Defend my preference for [certain]
rights.... But I make no claim for these rights beyond my ability to
persuade you to agree with me that history--especially the history of
wrongs--has shown these rights to be important enough to be given a
special status in the hierarchy of preferences. It may surprise you to
learn that for me there is no sharp line...separating rights from
strongly held preferences." It is here that Dershowitz stumbles.
For while rights are, in a sense, preferences, they are also more than
that: They are norms, behavioral norms necessary to create and sustain a
good society. And they become norms not through argument alone but
through its conclusions, through an articulated consensus of the
international community. One of the most astonishing lacunas in the
philosophical section of Shouting Fire is the absence of even one
mention, if the index and my reading are to be believed, of the
Universal Declaration of Human Rights. For while the UDHR did not set
out to be a legally binding treaty (the State Department called it in
1948 "a hortatory statement of aspiration") and hence avoids the limits
of positivism, it does reflect--imperfectly, to be sure, but as well as
possible within the current limits of human endeavor--what St. Augustine
called our "overlapping loves," our common measures of a decent world.
To those who disagree with its vision of that world, we can offer much
more than a shouting contest, much more than any one person's reading of
history or any one nation's perception of its needs. We can offer the
collective wisdom of the human community as hammered out, written down
and, more and more frequently, enforced. And part of that wisdom is that
torture is wrong. Everywhere. In all circumstances. With or without
Alan Dershowitz may not like that. And he is certainly entitled to go on
arguing about it. He is a persuasive fellow and eventually he may even
succeed in helping erode the international prohibitions on torture. That
will be a sad day, no doubt, but how comforting it will be to know at
that point that, thanks to the professor, the needles will be
When I was a teenager on my first trip to Paris, I remember looking out
at the Parisians from the window of a taxi as we proceeded along some
splendid boulevard and thinking, But do these people take themselves
seriously, really? They're not Americans, after all. Sorry. It's true,
though embarrassing. I felt sorry for them because they weren't us. I
needed a reality check, which the French were only too happy to provide.
They soon taught me how superior to us, and to me, they were in every
way, especially intellectually and in matters of literature, fashion,
proper cigarette inhalation and the application of maquillage.
Well, let that pass. Now Granta has published the greater part of
an issue (Spring 2002) devoted to Their perceptions of Us, called "What
We Think of America." Interestingly, the writer who is possibly the most
violently anti-American in the collection, or who admits to the most
violently anti-American feeling, is not French, or Arab, but Latin
American. Ariel Dorfman, the US-born Chilean writer, tells about the
time he watched an American toddler tumble into a swimming pool at a
resort in the Andes and carefully measured what his own reaction might
be--after all, the kid had been behaving badly (loud, blond, white,
Anglophone, whining, stupid, spoiled, exploitive, rapacious,
intervening, assassinating legitimate heads of state, financing coups,
training torturers... oops... but really, you catch Dorfman's drift). In
the end, though, he did dive in after the brat.
There is the gentler French person, badboy Benoît Duteurtre,
author most recently of the novel Le Voyage en France, which won
the 2001 Médici prize. Duteurtre criticizes Europe for
proclaiming a high ground in human rights from which to criticize the
Americans, as if, he says, to disguise from itself that it belongs to
exactly the same world and is mired in identical contradictions. He
makes fun of the way the French use the word Disneyland (pronounced
Deez-nee-lahhhhnd) to refer to the entire American polity.
President Jacques Chirac--that unsuccessful chameleon--comes in for a
smacking, too. In Chirac's speech after September 11, Duteurtre writes,
"I heard the inferiority complex of a Europe deprived of its role as
world leader...but still quick to judge good and evil."
The effect of Granta's roundup is shockingly human: Here are no,
or few, diatribes, and much affection--through tears--from Arab and
Muslim contributors. A piece that perhaps explains well what led to
September 11 (which I take to be the ostensible reason for
Granta's package) is Pankaj Mishra's "Jihadis," a beautiful,
brilliantly observed essay about Pakistan (by an Indian!) and its
troubled identity, as well as about the US and Pakistani governments'
growth and nurturing of the jihad movement. Gives you an idea, too, of
the level of corruption that made the initially pure-minded Taliban
This, to me, is the best issue of any magazine trying to explain
September 11. There is also Ziauddin Sardar's "Mecca," both funny and
instructive about the rituals of the hajj and of Saudi society in
general. Don't forget to appreciate the photo essay on Afghanistan by
Thomas Dworzak: It captures the dust, the mud, the turbans, the
mountains, as well as Northern Alliance soccer, burqa ladies buying
their liberation pop-music cassettes and the eerie ruins of eternal
Kabul, after the attacks.
Out on the Links
Sometimes, the problem with online magazines like The Black
Commentator (www.blackcommentator.com) can be the links. For
example, in the inaugural (April 2002) issue, there's a very persuasive
piece on the much-discussed Cory Booker, running for mayor of Newark in
the Democratic primary against the picaresque Sharpe James. Booker,
another dang Rhodes scholar, seems to pride himself on adopting some of
the meretricious conservative bent of Bill Clinton. The TBC piece
attacks Booker for his support of school vouchers and goes on to map out
in great detail the web of conservative groups that have supported the
Booker movement in Newark--not a pretty picture. It argues that Booker
is another pawn in the right's effort to develop African-American
politicians it can work with and manipulate.
The piece has no byline. But at the end, it has a feature possibly more
meaningful than a byline: "sources that contributed to this commentary,"
followed by a series of hyperlinks to information both pro- and
anti-Booker. In his speech at the Manhattan Institute, you can
hear--behind Booker's pro-voucher position--not only the clink of money
and financial backing and the Evil White Rich Men Who Run The World but
also the will of a black electorate with whom Booker, having lived in
Newark's projects and spent month after month on a notorious
never-cleaned-up corner in Newark's drug-dealing inner city, is not
unfamiliar. The problem with TBC is its paranoid style: I'd like
to see it address the question of why there seems to be a drift among
African-American voters toward conservatism--something that doesn't just
tell me the new black pols are being paid for it but that considers the
electorate as well, considers Booker's supporters: what they think of
people like Colin Powell or the improbably named Condoleezza Rice, or of
Cory Booker, who's no idiot. Don't some black families hold these
successful conservative types up as examples to their sons and
daughters, or is that just too Cosbyfied?
Al-Ahram Weekly, a venerable English-language publication based in Cairo
another paper that for themoment is focusing on an oppressed people--in
this case, the Palestinians. Al-Ahram is a useful corrective for
my formerly peace-leaning Jewish friends who feel that the US media,
especially the New York Times and CNN, are increasingly biased
against Israel. It's a real source for uncovered news about what's
happening in the territories, with much less of the myth-making and
demonizing that characterize so much of the Palestinian stuff coming out
of the West Bank over the Internet in these impossible times. Much less
paranoia here but, still, a painful and useful reality check.
On the morning of April 20, in the nation's capital, activists held two anti-war rallies, each of which drew thousands, almost within sight of one another.
I am beginning to suspect that Nation readers may not fully appreciate the challenges Attorney General John Ashcroft faces. What would you do in his place? Your intelligence agencies had no advance knowledge of the September 11 plot and don't appear to know much more about future attackers. Airport security screeners are letting test bombs and guns pass at alarming rates, and your immigration agency is so hapless that it issued visa extensions to two of the hijackers six months after they died flying planes into the World Trade Center towers. When you consider the threat from their side and the incompetence on ours, it's understandable that Ashcroft has cast his net so wide. He's shooting in the dark. In fact, the expanse of his net is probably inversely proportional to the depth of the intelligence he has received.
But just as with the terrorists themselves, understanding Ashcroft's motives does not justify his actions. To date, despite the thousands of Arab and Muslim immigrants arrested, searched, profiled and questioned, Ashcroft has charged only a single person--Zaccarias Moussaoui--with any involvement in the attacks of September 11. And he was arrested before the attacks occurred. Such broad-brush tactics are unlikely to succeed, for they give notice to potential targets, allowing them to evade detection while alienating the very communities we must work with to identify potential threats who may be living among them.
Ashcroft has shown no signs of getting closer to his target. And the less he finds, the wider he sweeps. He recently announced that he was extending to 3,000 more people his much-criticized initiative to subject male immigrants from Arab countries to "voluntary" interviews, despite the fact that the initial interviews have led to no further charges in the investigation. And having learned how easy it is to use immigration law as a pretext for criminal law enforcement when you lack probable cause, the Justice Department is now preparing to enlist local police officers to help enforce immigration law, a disastrous proposal likely to drive immigrant communities even deeper underground.
The lengths to which Ashcroft will go was revealed most recently by his indictment of Lynne Stewart, a 62-year-old New York attorney who has made a career of courageously taking on clients for whom few other lawyers are willing to risk their reputations. Her most notorious such case was defending Sheik Omar Abdel Rahman in his 1995 criminal trial for conspiring to bomb the tunnels into Manhattan. Now she's charged with providing "material support" to the sheik's organization, the Egypt-based Islamic Group, largely by abetting communications between the sheik--whom prison regulations prohibit from communicating with virtually anyone in the outside world--and others in the group.
The government simultaneously announced that it will make Rahman its test case for its unprecedented initiative to listen in on attorney-client communications. Confidential exchanges with lawyers have long been sacrosanct, because they are critical to any fair legal process. In the past, they could be intruded upon only with a warrant based on probable cause that the communications were intentionally furthering criminal activity, but the new regulations permit monitoring without a warrant or probable cause. But under regulations issued after September 11, the government claims the authority to monitor attorney-client communications without establishing probable cause for believing that the communications are being used for illegal ends, and without obtaining authorization from a judge.
Most troubling, Ashcroft is prosecuting Stewart although she has not been charged with furthering any illegal or violent activity of the Islamic Group, a wide-ranging Islamic political movement that engages in a great deal of lawful activity in addition to terrorism. While many have criticized the government for targeting a lawyer, of far more concern is its criminalization of speech and associations having no connection to terrorism. Unable to link Stewart to any actual terrorist activity in any way, Ashcroft has resorted to guilt by association. As a US citizen, Stewart will at least have an opportunity to defend herself in a public trial. Not so the hundreds of noncitizens still being detained on immigration charges in connection with the September 11 investigation, many long after their immigration proceedings have concluded. Under orders from Ashcroft, they are being tried in secret proceedings closed to the public, press, legal observers and family members.
In a major setback for the Ashcroft agenda, US District Judge Nancy Edmunds on April 3 declared the closed proceedings unconstitutional. She ruled that open trials are a fundamental feature of our justice system and that any closure must be carried out not in the sweeping manner that Ashcroft so favors but through means narrowly tailored to protect national security interests. The government has appealed, arguing that to act in a more narrowly tailored fashion might tip off Al Qaeda to what we do and don't know. But one has to wonder whether the government's real concern isn't that opening the proceedings might tip off the public to just how wildly John Ashcroft is shooting in the dark.
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