Losing Our Civic Religion: A Conversation With David Shipler (2)

This April, Pulitzer Prize-winning author David Shipler, a former foreign correspondent for The New York Times in Israel and the Soviet Union, released “The Rights of the People.” The book – a critical examination of the erosion of the Fourth Amendment even before the War on Terror accelerated its pace – dropped without much attention. No appearances on Rachel Maddow. No radio interviews on NPR. Few reviews, not even in his hometown paper The Washington Post. Once again, another opportunity was lost to discuss one of the most critical, and quintessentially American, issues foisted on the country by 9/11: have Americans given up too many of our freedoms in return for the illusion of safety?

I recently sat down with Shipler to talk about the state of American civil liberties ten years after 9/11. Slight and unassuming, Shipler wears a grizzly beard, reminiscent of Tolstoy. His small greenish eyes are friendly, but penetrating. In two hours of conversation, his eyes rarely, if ever, left my own. When discussing the future, he maintains a stubborn faith that Americans will sometime soon shed the horrible hangover with which 9/11 left us. Here's hoping he's right. (The interview has been edited for space.)

Matthew Harwood: You spend a lot of time discussing the lack of rights of poor black men during their interactions with police around the nation's capital. Why did you choose to start the book this way, considering what sparked you to write the book was your fear 9/11 would eviscerate American civil liberties?

David Shipler: First of all, I realized very soon after beginning research that the constitutional rights that I was looking at were no different in the counterterrorism field from what they are in the anti-narcotics field or in any investigation of common crime. The issues or the problems of counterterrorism are on the same spectrum as the problems of the war on drugs. It's just that they're on a different part of the spectrum. So, I decided to try to structure the book so that it would move across the spectrum of government intrusion from the most overt and challengeable in court to the most covert and least changeable.

MH: Reading the book, I thought it was a kind of wake-up call to Americans that a lot of these infringements have been happening before 9/11.

DS: Well I did want to make that point. That's why it's a little annoying when I'm characterized as doing a post-9/11 critique, because at least a third of the book has nothing to do with 9/11 and has nothing to do with terrorism. All of the issues have been issues from the beginning of the republic, actually, and have played out in different ways. Rights expand and contract depending on circumstances, such as fear, a sense of danger, and emergency. I think it's important and very instructive for citizens to see the Fourth Amendment as one of the parts of the Bill of Rights that we're talking about as coming into play in many different arenas that may have nothing to do with counterterrorism.

MH: One of the more disturbing scenes in your book is when you saw young black men lift up their shirts to expose their waistbands without being asked when walking past cops. How surprised were you when you saw this? How many understood their rights but chose not to exercise them because they were afraid of the police?

DS: I was very surprised. What it said to me was that they were very accustomed to uniform police in marked cars – especially this power shift, the gun squad – wheeling into their neighborhoods, coming out and wanting to check to see if they had weapons. They were very used to that; it happened all the time. They acted the way we act at airports when we take our shoes off. Except when you do it in front of your house on your own street, it's a different context. And the rights are different; your rights are definitely being abridged.

I did not really have the opportunity to talk to the young guys who were lifting their T-shirts. But I did ask people whose cars were searched by the same unit, quite a few people, whether they gave permission and why. And the responses there were basically, “We could say no?” Or, “I ain't got nothing to hide.” I didn't come away with the sense that people knew they had the right to say no, or if they thought they might have the right to say no, it was not one that they would exercise, very wisely, because it would enhance police suspicion and police would search anyway.

MH: Did people express fear that saying no would only make the situation worse?

DS:The atmosphere in neighborhoods when police come around in six squad cars and a dozen jump-outs are around you is not a neutral situation. And most of those cops are white and you're black and people have had bad experiences with police very often. So, I think it's very hard to make the argument that the consent is freely given.

At the same time, talking to J.J. Brennan, the sergeant who had the interdiction unit at Union Station, I actually came away convinced that those people did give consent, either because they were afraid not to or because they didn't have the right to say no or because they thought that police would be more suspicious and would search anyway or, in the case of drug couriers, because they thought they had the drugs so well hidden that they wouldn't be found.

Readers can judge for themselves, but what it all showed was not so much police misbehavior as the courts' misbehavior. The parameters are now easy enough to allow the police to do a lot of things that are, I think, not in the spirit of the Fourth Amendment.

MH: What was the most disturbing or enraging story you wrote about in the book?

DS: There are two. One is the basic situation of personal frisks and car searches in these poor black neighborhoods. That was disturbing on two sides. One, that it was permissible and, two, that the residents acquiesced. Our Constitution exists not only because there is case law, but also because of individual citizens observing it and believing in it and fighting for it. So, when you have a whole group of citizens in neighborhoods that no longer fight for their constitutional rights, the rights go away. They exist only when they're exercised.

The second one was Brandon Mayfield for two basic reasons. One was the use of surreptitious searches that ultimately couldn't be challenged, the sneak-and-peek break-ins to his house; the collection of DNA evidence, cigarette buts; copying the hard drives on three computers and one external drive; planting bugs in his house and his law office, violating attorney-client privilege.

And the second part of that was the intellectual dishonesty of the FBI. Because what they did, and I think this has implications for a lot of other investigations, is they took particular facts that they had discovered in his house through the FISA [Foreign Intelligence Surveillance Act] warrant and arranged them in an incriminating fashion to make it appear as if he were involved in the Madrid train bombing. They took a faulty fingerprint match and used it as a pivot around which they spun a whole theory of the crime. We know this, by the way, only because he sued and pried documents out of the FBI. Most of these investigations we don't know about. We don't know the details. But in this case, we know because he got these documents.

To me there were so many intellectual failures in the FBI investigation, beginning with the lab, that it really does create a certain terrifying concern for citizens. These people are pros, so they should be professionally trained to keep open minds the whole way through and not discount exculpatory evidence and not arrange evidence in a way that supports their theory of the case. There were a couple of mistakes that no good scientist would ever make doing a clinical trial. One was that there was context bias. The examiners knew what the case was about. So when they got the print from Interpol, they ran it through their computerized system and it spit out ten to twenty possible matches; they came in on a weekend and they knew that this was the case, the Madrid bombing. They had to solve it. That was the first problem. They shouldn't have been told what the case was because that heightens the sense of urgency to find the match even where it might not exist.

Secondly, all the examiners knew what all the others had concluded. So, their first examiner, who was very experienced, concluded that this was a match [of Mayfield]. And the next examiner, who was supposed to exercise independent judgment, already knew what the first one had concluded. This was hardly a double-blind study.

MH: How has writing the book changed you? Are there things you do differently now, considering how much power the government and companies have to interfere in our lives unannounced?

DS: I am more careful about what I put in emails than I used to be. But it has more to do with privacy than fear. I'm not particularly afraid that government is going to go after me. I think that if I want to keep certain things private, I'm not going to put them in emails. I'm more concerned about hackers and identity theft, because I know now easy it is now to do that. Email is extremely insecure.

MH: Considering government's past abuses like COINTELPRO, do we have to be worried about government using technology to discredit critics and dissidents?

DS: I think so, because amassing huge amounts of data can be used for nefarious purposes, whether by government or anyone else. I think that the Mayfield case and the way they used those pieces of information to create a whole scenario is a good example of the danger.

There's a case being heard this fall in the Supreme Court about GPS surveillance. And there are mixed opinions at the lower courts but the DC Circuit opinion is really worth reading, because it has a very good paragraph or two about the difference between a police officer observing or following a car on a public street and a GPS device attached to the car 24/7. It's a good opportunity for the court to set some limits on electronic surveillance. I'm not very optimistic that they will.

One of the problems is that what the court has defined as the expectation of privacy, which invokes the Fourth Amendment. If you have a reasonable expectation of privacy, then the government acquiring information in that situation is usually considered a “search” under the Fourth Amendment. But if you have no expectation of privacy, it's not a “search,” and therefore the Fourth Amendment doesn't come into play and a warrant is not required.

There is a whole range of electronic digital data now that really is part of the fabric of 21st-century life. And to say that you have no expectation of privacy over that information is to say no expectation of privacy over anything really except what's in your own home physically. And I think that's just an outmoded, outdated legal view and the court really needs to address or Congress could address it in a statutory way. So, it would be nice to think that this GPS case could provoke the court into looking clearly at that kind of situation.

MH: Isn't there a private property component to the GPS surveillance case? Why can the government trespass on private property or tamper with private property without constraint?

DS: That's certainly a boundary to talk about, but I would argue that the boundary should be even more restrictive. That it's not just a question of where a car is located, because they can always find a car in a parking lot or follow it until it parks on the street and that would eliminate the problem of going onto private property. The question really is whether the quantity of information changes its quality. Even though it's all in the public arena that is public streets and a police officer could follow it all around, but the DC Circuit said that there is a difference and the difference is the totality, the comprehensiveness. And I think that's a very important point, although it's hard to see this Supreme Court agreeing with it. That's the boundary that should be put in place. If it's done, it can have implications for a lot of other electronic surveillance. It could make it more difficult to get bank records, telephone records and online web browsing activity. We need to set boundaries, I think. One of the problems, of course, is generally speaking I don't think Americans, with some exceptions, are all that exercised about it. We voluntarily give up our privacy all the time. You know Facebook and this and that and the other thing.

What has to be done is that law has to prevent government particularly from accessing your private personal information even if it's in the hands of a private company. That would be my argument, that the boundary has to be reinforced, not made more permeable. It's been made more permeable since 9/11, so it's much easier for government to get that information now that it was. The privacy laws that were enacted after COINTELPRO have been shot full through of holes by the 1994 antiterrorism law, the Patriot Act and the 2008 FISA Amendments. We've gone in the opposite direction than where we need to be going given the expansion of technology. I think that the law has to create a boundary.

MH: Do you agree that the only way for Americans to remain free is to accept that they could be blown up at any time and that's the price of a free society?

DS: This is a very crude question, but it's very sophisticated at the same time and very complex. It's not the free and open democratic society that aspires to eliminate risk; it's the police state. The police state does not succeed. I spent four years in the Soviet Union and, occasionally, there were incidents of political violence: we didn't hear about most of them. But they occurred here and there, and if there had been a real movement in that country that wanted to use political violence, I don't think it would have been possible for the KGB secret police to prevent all incidents at 100 percent. You just can't do it. In a modern society, particularly where people are mobile, where people have vehicles that they can load up with explosives, or people go to public areas and are willing to wear explosive vests and blow themselves up, it's impossible to reduce risk to zero.

So, the question is: “How much risk are you willing to tolerate to have a free society?” That's not a calculation that's really mathematical. It's psychological. It's really hard to come to a clear conclusion about it, because as individuals, or even as a society, you have less power over this than you may imagine you do. In the Soviet Union, where crime was not reported publicly and crime statistics were a state secret, people were uninformed about the dangers, except in their immediate neighborhood where word of mouth gave them a picture. So, women would go into parks at night and get assaulted because they didn't know it was unsafe. What this all says to me is that a certain fear can be both rational and irrational. And this is not easy to calculate and it's very difficult to permit a level of risk that's acceptable, but not greater than you're willing to bear.

The point I'm trying to make here is that a lot of the counterterrorism measures that have been implemented may appear to reduce risk, and may in certain ways, but may increase risk in other ways. So, if you have huge amounts of information pouring into intelligence agencies because of the technological capabilities and the law's permissiveness, which is what we have now, you inundate analysts to the point where they cannot hear the ominous melodies against the background noise. The most vivid case was the Abdulmuttalab case, the “Underwear Bomber.” The White House did the preliminary look at this and said his father had come to the embassy and complained about him, but there was so much other information that it didn't jump out at anyone. That's a real risk. I was just reading an Associated Press piece today about the New York Police Department doing surveillance of Moroccans and writing these memos about a Moroccan barber shop, and so and so goes there to work everyday. This is how police assets are used in New York City? This is not an effective intelligence gathering or law enforcement procedure. And it's done because they can do it. I think it's very dangerous. It creates a lot of dangers not just for the targets of the surveillance, but also the general public because resources are being wasted.

I'm not convinced that the methods that have been permitted since 9/11 are all that effective. If you look at the actual domestic terrorist cases that have been brought, almost all of them have been unraveled either because of a casual informant … or because they were incompetent … or because of some intervention. In other words: nothing esoteric to unravel these plots, just alertness by ordinary Americans and good luck.

I only know of two cases where FISA, as amended by the Patriot Act, was used effectively. One was the Zazi case – the guy who was going to blow up the New York subways. Even there, they got FISA warrants after Pakistani intelligence advised them that this guy had been at an al-Qaeda training camp. The other FISA case was the Portland Seven. That was not to unravel the plot; it was to monitor if they were getting prepared to attack a synagogue or a Jewish day school, and the feds could move it before they had enough evidence to arrest them for the other stuff. They were concerned that this might happen, so they were watching them and listening to them.

But it's rare. You have two cases in ten years. That might be enough to satisfy fearful Americans; it's not enough to satisfy someone who is concerned about preserving the constitutional structure and constitutional liberties because the danger here is, to use the ACLU's term, it becomes a “new normal.” These methods work their way into law as they have, work their way into procedure, as they have, and are upheld by the courts and become precedent in case law, and the contours of the Fourth Amendment get narrow to permit more and more invasions without warrants. That becomes a semi-permanent situation. It's not easily overturned. That's the risk. That's my worry.

MH: So, is the book a eulogy for American civil liberties?

DS: [Shakes his head.] No, I don't feel that way at all. I'm cautiously optimistic because of the history of this country. We've gone through periods worse than this and have come out of them and looked back with shame on what we did. I think there's no question that the previous five episodes that I list in the book are now regarded not with pride, but with great regret and even outrage. So, at some point, I think, we will come out of this period.