The new USA PATRIOT Act has brought into being an unprecedented merger between the functions of intelligence agencies and law enforcement. What this means might be clearer if we used the more straightforward term for intelligence--that is, spying. Law enforcement agents can now spy on us, "destabilizing" citizens, not just noncitizens. They can gather information with few checks or balances from the judiciary.
Morton Halperin, a defense expert who worked with the National Security Council under Henry Kissinger, worried in The New Yorker that if a government intelligence agency "thinks you're under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they've done it." Moreover, says Halperin, on whose phone Kissinger placed a tap, "Historically, the government has often believed that anyone who is protesting government policy is doing it at the behest of a foreign government and opened counterintelligence investigations of them."
This expansion of domestic spying highlights the distinction between punishing what has already occurred and preventing what might happen in the future. In a very rough sense, agencies like the FBI have been primarily concerned with catching criminals who have already done their dirty work, while agencies like the CIA have been involved in predicting or manipulating future outcomes--activities of prior restraint, in other words, from which the Constitution generally protects citizens.
The events of September 11 were a tremendous failure of intelligence, as well as a monumental embarrassment for law enforcement. At the same time, we must not allow our sense of helplessness in a teetering, unruly world to distort us. In startling numbers, Americans suddenly seem willing to embrace profiling based on looks and ethnicity; detention without charges; searches without warrants; and even torture and assassination. We want to open up the hearts of those all around us, peer in and see for ourselves what evil lurks in the hearts of men, women and neighbors. But the difficult reality is that no such measures were apt to have revealed the World Trade Center hijackers; no such measures were likely to have prevented Timothy McVeigh's bombing of the federal building in Oklahoma City.
Prophesying wrongdoing, particularly of those with no history of mental illness or violent criminality, is guesswork at best. No one foresaw the attacks on the World Trade Center because well-financed, professionally trained operatives spent years planning, strategizing and coordinating that effort. The sad and unpalatable truth is that preventing surprise attacks of that sophistication may never be possible. If the risk ever could be reduced, it will require not so much the identification of "suspect" profiles but the kind of cross-cultural fluency and diplomatic skill of which the intelligence community has confessed it has an unfortunately short supply.
Yet in recent weeks, student demonstrators, global justice workers, civil libertarians, animal rights and peace activists have been characterized as terrorist sympathizers. More than 1,000 people have been arrested and held, approximately 800 with no disclosure of identities or location or charges against them. This is "frighteningly close to the practice of 'disappearing' people in Latin America," according to Kate Martin, the director of the Center for National Security Studies. And neighborhood watch groups have geared themselves up with troubling expressions of vigilantism.
Most alarming of all, a recent CNN poll has revealed that 45 percent of Americans would not object to torturing someone if it would provide information about terrorism. Callers to radio programs say that we don't always have the "luxury of following all the rules"; that given recent events, people are "more understanding" of the necessity for a little behind-the-scenes roughing up. The unanimity of international conventions against torture notwithstanding, one hears authoritative voices--for example, Robert Litt, a former Justice Department official--arguing that while torture should not be "authorized," perhaps it could be used in an "emergency," as long as the person who tortures then presents himself to "take the consequences." The free enterprise version of torture, I guess we'd have to call it.
While fully acknowledging the stakes of this new war, I worry that this righteous lawlessness is not new but has been practiced in oppressed communities for years. It is a habit that has produced cynicism, riots and bloodshed. The always urgently felt convenience of torture has left us with civic calamities ranging from Abner Louima in New York City to Jacobo Timerman in Argentina to Alexander Solzhenitsyn in the Soviet Union--all victims of physical force and mental manipulation, all people who were "known" to know something.
The problem with this kind of "preventive" measure is that we are not mind-readers. Even with sodium pentothal, whose use some have suggested recently, we don't and we can't know every last thought of those who remain silent. Torture is an investment in the right to be all-knowing, in the certitude of what appears "obvious." It is the essence of totalitarianism. Those who justify it with confident proclamations of "I have nothing to hide, why should they?" overlap substantially with the class of those who have never been the persistent object of suspect profiling, never been harassed, never been stigmatized just for the way they look.
The human mind is endlessly inventive. People create enemies as much as fear real ones. We are familiar with stories of wrongheaded projections heaped upon the maid accused of taking something that the lady of the house simply misplaced or the wayward child stole. Stoked by tragedy and dread, the creativity of our paranoia is in overdrive right now. We must take a deep collective breath and be wary of persecuting those who conform to our fears instead of prosecuting foes who were and will be smart enough to play against such prejudices.
Patricia J. Williams is a professor of law at Columbia University and writes The Nation's Diary of a Mad Law Professor column.
© 2001 The Nation Company, L.P.