This year is the tenth anniversary of the end of apartheid in South Africa, the fortieth anniversary of the Civil Rights Act of 1964 and the fiftieth anniversary of the Supreme Court’s ruling in Brown v. Board of Education. This confluence was impressed upon me yesterday when I received an invitation to a conference hosted jointly by the University of Mississippi and the University of South Africa, on “South African Democracy and US Civil Rights.” The abstract made for intriguing reading: “South Africa’s constitutional democracy is premised, inter alia, on the right of individuals and communities to re-invent their identities, to imagine new social worlds, and to participate in the public contestation of alternative political imaginations. This is in stark contrast to the apartheid state, where social identities were legally imposed, where individuals were not allowed to transcend the strictures of rigid classifications, and where the space for political action was severely constricted.”
As I was reading this, a broadcast of various officials’ testimony before the 9/11 Commission was playing on the radio. As background noise, it made for odd listening. All those agencies, bureaus, offices and teams clearly had information, knowledge, intelligence. What seemed to be missing was any ability to interpret what they had. Surely this kind of work is not easy–no one expects governments to be able to anticipate or control all the horrors of the world–but the more witnesses revealed to the commission, the more it seemed clear that the inability to interpret what data they did have resulted less from lack of facts than from a failure of analysis, lack of translators, innumerable petty rivalries and internal administrative bumbling of shocking proportions.
Yet media summaries of the commission’s inquiry seemed to drift away from questions of effective coordination and move toward granting greater “war” powers to law enforcement. Repeatedly, there were references analogizing the war on terror to the war on drugs–which has not been particularly distinguished either by its regard for human rights or by anything like success. Media commentators from various think tanks hypothesized confidently on TV and radio: If only the government didn’t have to apologize for compiling lists of people based on membership in suspect political organizations (concurrently, it was reported that the government has compiled a no-fly list that includes pacifists and attorneys for the ACLU, not just Al Qaeda). If only they didn’t have to worry about discriminating against ethnic or religious groups when deciding when to stop and search. If only, if only they were able to follow their every last hunch.
Anticipating criminality and deciphering intent will always be the most difficult and uncertain of endeavors. But haphazard, wide-net suspicion is no substitute for less intrusive, more practical safeguards. The hijackers didn’t necessarily “look” suspicious when they showed up at the airport on September 11; it would be terrible if their example were used to legitimize new rounds of ethnic or racial profiling. Such overbreadth ignores the better and simpler evidence against the hijackers: Regardless of arrest records or flying schools, they were carrying four-inch knives and no one caught it. Moreover, they could not have done what they did if the cockpit doors had been reinforced and locked, as Israel’s El Al Airlines has done for years. El Al also makes its baggage compartments shock-proof to lessen the possibility of an explosive package bringing a plane down.
We Americans have always prided ourselves on being a mobile society. We roam, we are restless, we move. Our homes are temporary, we change our names, we go from rags to riches. We own ourselves, we renovate, we change. This plasticity of identity is central to how we practice our freedom. Liberated people around the world have followed our example, from South Africa to Tiananmen Square. In contrast, the great price of living in a constantly policed state is that you can never move without being followed; that you can try to change your name but they always have your number; that your fate is tied to the assumed propensities of your profile.
The commission hearings continued through the day. John Ashcroft, the highest lawyer in the land, was complaining that FBI agents don’t have enough freedom but are “given instead the language of lawyers.” He was decrying “the barrier” between domestic policing and global intelligence-gathering. He was denouncing the “snarl” of legal regulations before which FBI and CIA agents supposedly dither for fear of “breaching the wall” between them and the pursuit of “decisive lethal action.”
Perhaps it was hard to decipher, but his testimony was a defense not only of pre-emptive assassination but also of the USA Patriot Act’s apparent license for domestic spying–in effect, giving the FBI and CIA power to profile citizens based on heretofore private information, to conduct warrantless searches of homes and computers and to sabotage political activity they deem undesirable, without review. In other words, the power to act as secret police. There was no mention of the Fourth Amendment or the Bill of Rights in Ashcroft’s testimony. There was no mention of the FBI’s disgraceful history, of its discrediting of Martin Luther King Jr. or its sabotage of scores of legitimate civil rights organizations; no reference to its mishandling of everything J. Edgar Hoover ever touched, or the botched investigations of Timothy McVeigh and James “Whitey” Bulger.
A police state is not the same as a neighborhood watch. Police make mistakes, and when they are licensed to act ungoverned by due process, they are unaccountable to the public for their “decisive lethal action.” That is a recipe for corruption or, at the very least, horrific mistakes. Without legal recourse citizens fear politics. And when they cannot reinvent themselves through political expression, they cannot “transcend the strictures of rigid classifications.”
The same day as Ashcroft’s testimony, President Bush gave a press conference in which he promised the Iraqi people “a bill of rights that is unprecedented in the Arab world.” It would be a tragic irony if ten, forty, fifty years from now, we were to look back on this as a time when we traded in our own.