The Constitution After 9/11

By JONATHAN MAHLER
Published: June 10, 2011
Courtesy Of "The New York Times"

At 11 o’clock on the morning of Sept. 11, 2001, David K. Shipler experienced what he describes, immodestly if not inaccurately, as “a moment of extreme clarity.” While most of us remained glued to our television sets in a post-traumatic daze, Shipler evidently sought nobler ground. His thoughts turned to the first 10 amendments of our nation’s Constitution. “There go our civil liberties,” he recalls thinking.

THE RIGHTS OF THE PEOPLE

How Our Search for Safety Invades Our Liberties

By David K. Shipler

366 pp. Alfred A. Knopf. $27.95.

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Excerpt: ‘The Rights of the People’ (Google Books)

The result of that precocious revelation was the “journey of self-education” that culminated in his new book, “The Rights of the People.” The subject proved too vast to cover in a single book; a second volume, he says, will be published a year from now.

You don’t have to drink your fair-trade coffee out of a “Morning Edition” mug to buy into Shipler’s central claim: Since 9/11, our government has treated the Bill of Rights with about as much reverence as a “Keep Off the Grass” sign. While Shipler may have started out ahead of the competition, he has since fallen some distance behind it. He joins a long list of authors who have already dealt, either directly or indirectly, with the erosion of America’s civil liberties in the aftermath of 9/11. This is scandalous stuff, but perhaps not of the sort that moves merchandise. With a few notable exceptions, most of these books migrated quickly from the front tables of Barnes & Noble to the back shelves, before reaching their final resting place at the bottom of remainder bins.

Shipler’s bona fides — he won a Pulitzer Prize in 1987 for his book “Arab and Jew” — will go some distance toward preventing this one from being easily dismissed. Shipler once worked as a foreign correspondent for The New York Times, and he has a knack for cogently framing some pretty unwieldy and esoteric material. He also has a clear command of the history, pointedly recounting the other occasions in our past when we have transgressed against our Constitution.

It’s evident from the opening pages of “The Rights of the People” that this is going to be a very different book from “Arab and Jew” or, for that matter, Shipler’s most recent previous effort, “The Working Poor.” Those were both works of reportage in which Shipler relied heavily on a cast of memorable characters to lend a sense of immediacy and nuance to the complicated issues he was tackling. In “The Rights of the People,” Shipler is less curious reporter than outraged editorialist. He will not be accused of understating his case. On the contrary, he has a tendency to undermine it with hyperbole, closing his preface with a radical assertion that would not find much purchase in either George W. Bush’s or Barack Obama’s White House or, indeed, among the public at large: “The most terrifying possibility since 9/11 has not been terrorism — as frightening as that is — but the prospect that Americans will give up their rights in pursuing the chimera of security.”

It stands to reason that breaches of individual liberties would be most common and egregious in times of war, and a quick glance backward reveals that that has certainly been the case. From the 1798 assault on free speech known as the Alien and Sedition Acts, designed to squelch criticism during America’s undeclared naval war with France, to the infamous cold-war-era investigations of the House Un-American Activities Committee, the specter of conflict has invariably brought with it a paranoia of internal subversion. As Shipler writes: “In practically every war, it seems, those wielding the authority of the state were gripped with a galvanizing fear, not just of the enemy abroad but of an imagined virus of resistance and subversion at home.”

Historically, a healthy dose of retrospective shame, the genius of our independent judiciary and, above all, the resilience of our Constitution have helped ensure that any statutes or policies rashly undertaken while in the grip of such fear didn’t survive for long. The rule of law ultimately prevails. Or it did, Shipler writes, until recently. But since 9/11, he says, the system has yet to self-correct. Fundamental freedoms taken away in the aftermath of the attacks have still not been restored.

The violations have ranged across the constitutional spectrum, but in this first volume Shipler concentrates on the Fourth Amendment, which, in principle anyway, protects citizens from unreasonable searches and seizures. His approach can feel scattershot, but it coheres to a certain logic. After a brief history lesson, he takes to the ground, observing the police in some Washington, D.C., neighborhoods as they prod suspects to voluntarily waive their Fourth Amendment rights, and turn houses upside down under the cover of search warrants often based on “dubious tips” from “sleazy sources.” “In the deepening dusk of a back alley near the railroad tracks,” he writes, “the Constitution seemed like a faded idea.”

From here, Shipler retreats into more clandestine and politicized activity, to the shadowy realm of the Foreign Intelligence Surveillance Act and of National Security Letters, which under the Patriot Act expanded the powers of F.B.I. field offices, allowing them to do things like demand computer records from public libraries. He follows the case of Brandon Mayfield, an Oregon lawyer and United States military veteran, whose home and office were covertly searched and bugged after he was mistakenly suspected of being involved in the 2004 train bombings in Madrid.

Shipler spreads the blame for this and other abuses among an overreaching executive, a co-conspiring Congress and law enforcement and intelligence officials who would much rather be criticized for violating privacy than for missing another attack. He also finds plenty of fault with the courts. His targets are not undeserving of criticism, but Shipler can take it much too far. A former Moscow correspondent for The Times, he draws numerous comparisons between the right-wing ideologues of the Bush administration and the left-wing ideologues of the Soviet regime, noting that both relied on emboldened executives cowing weak legislatures and judiciaries. “Russians were screened for political orthodoxy before placement in significant jobs,” he says. “Bush apparatchiks did the same.”

Oddly, the book I found myself thinking about most frequently while reading “The Rights of the People” was Eric Schlosser’s “Fast Food Nation.” Like Schlosser, who set out to expose the growing dominance of the fast-food industry and its pernicious effects on the country’s health, Shipler seems to be aiming to jolt Americans awake to the continuing assault on their Bill of Rights. What his subject matter may lack in visceral drama, he seems inclined to make up for with overblown rhetoric and metaphors.

That “The Rights of the People” ultimately fails to deliver much in the way of shock value is, in itself, a powerful statement. At times, I wished that Shipler had scaled back his ambitions, that rather than trying to cover so much well-plowed ground, he had gone in the opposite direction and compressed what he learned on his journey of self-education into an essay. He could have given us something that was less concerned with cataloging abuses of the Fourth Amendment and more concerned with explaining why they matter, and not just to the victims. As Shipler writes in the book’s final pages: “The rights of the lowliest criminal are not his alone. They belong to us all.”

Jonathan Mahler, a contributing writer for The Times Magazine, is the author of “The Challenge: How a Maverick Navy Officer and a Young Law Professor Risked Their Careers to Defend the Constitution — and Won.”