E S S A Y S
on civil liberties & justice
By Sam Smith
The Progressive Review
When was the last time a Mexican cut your pension or health benefits?
The road grows shorter
A tale of two police chiefs
When police riot
Whenever a new crisis develops in
an election year and it's not nature's or the stock market's
fault, the odds are pretty good that it's not a crisis.
The road grows shorter
It is not easy to recognize fascism if you haven't been there before. Our eyesight is blurred by everything from cultural optimism to psychic denial. But news of the NSA's mass spying on American's phone records - in number of victims, at least, perhaps the most broadly illegal and unconstitutional act in our history - makes it all simpler. There is not an ounce of hyperbole in calling the NSA's action those of a fascist regime and not of a democratic state. NSA has not only violated the law, it even refuses to allow the Justice Department to investigate its violation. This is the behavior of a dictatorship, not of a democracy.
Sadly, even more telling that NSA's action - in determining how far down the road to fascism we have traveled, is the response to it by the public, the press and the law. In a real democracy, citizens, media and their attorneys stand up against such abuse; in this case there is a truly frightening ambivalence and apathy.
According to the Washington Post, nearly two thirds of Americans support the NSA in its actions - 44% strongly. This may not be so surprising when one considers how little time and space the media has permitted for arguments that paranoia is a poor way to protect oneself or that a regime that will trash its laws and constitution rather than adopt a more reasonable foreign policy is not to be trusted to be either fair or safe. On a regular basis the press reinforces the idea that "national security" is inherently at odds with democracy and decency, repeatedly nudging the citizen towards the former even if it is, as it so often is, a phantom refuge.
Further, many lawyers - and the commentators who quote them - foster such trends by the mythology that justice is best served by following precedents or case law. This bias is based on the cheerful presumption that progress in the law as elsewhere is inevitable. On a number of occasions, however, I have asked extremely intelligent lawyers what does one do in a society where the legal precedents are becoming worse - as they are in a country dismantling two centuries of ideals? Not one has given a coherent answer.
One can not tell how much
longer America has before it gives up on democracy completely.
What we can say, however, is that the road has just gotten much
1. The Ten Commandments outlaw killing and adultery but that doesn't seem to bother your colleagues as much as gay marriage. Why do you think the Ten Commandments are less important to them than gay marriage?
2. Would you accept a compromise in which we outlawed not only gay marriages but support of deadly wars or cheating on your wife? If not, why not?
3. The Ten Commandants say "You can work during the six weekdays and do all your tasks. But the seventh day is a Sabbath to God your Lord. Do not do anything that constitutes work. [This includes] you, your son, your daughter, your slave, your maid, your animal, and the foreigner in your gates." You have not yet formalized this into a constitutional amendment and so your maids, slaves, animals and proximate foreigners are running around hog wild on Sundays. Isn't this more dangerous than a few gays getting married and shouldn't you tackle it first?
4. Exodus tells us to kill those who work on Sunday. This seems to conflict with the federal code, not to mention the Ten Commandments. Shouldn't we worry more about Seventh Day slaughter than about gay marriage?
4. Since religions differ sharply on this issue, if this amendment passes it will directly conflict with the First Amendment which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Which constitutional amendment should we then follow?
5. Since Republicans believe so firmly in the sanctity of marriage, how do you explain the following from the New York Daily News in August 2004: "With thousands of Republicans set to invade the city this summer, high-priced escorts and strippers are preparing for one grand old party. Agencies are flying in extra call girls from around the globe to meet the expected demand during the Aug. 30-Sept. 2 gathering at Madison Square Garden."
6. Explain the moral difference between a Republican politician opposing gay marriage and one participating in gay sex which, according to police and news reports, happens from time to time. Do we need an amendment preserving the sanctity of gay sex outside of marriage?
7. If this were 1956 instead of 2006, would you have supported a ban on inter-racial marriages, which most states had? How does the current amendment differ in spirit - rather than merely the target - from the one proposed in 1911: "Intermarriage between negroes or persons of color and Caucasians . . . within the United States . . . is forever prohibited."
8. Have you ever had contact with a woman during her period of menstrual uncleanliness, something outlawed by the Bible? Should we have a constitutional amendment to prevent this sort of thing from happening again?
9. How would you deal with the issue raised by Professor Emeritus James Kaufman of the University of Virginia: "Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations." Do you think this biblical right should be also codified in a constitutional amendment? How will this affect our plans for construction of a border wall?
10. Leviticus reminds us of other sins far more prevalent than gay marriage. For example, "These shall ye eat of all that are in the waters: whatsoever hath fins and scales in the waters, in the seas, and in the rivers, them shall ye eat. And all that have not fins and scales in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you. . . ye shall not eat of their flesh, but ye shall have their carcasses in abomination." Do we need a constitutional amendment to ban the eating of shrimp, crab, lobster, clams and mussels?
11. Homosexuality has been found by scientists in 450 other species. Isn't it a bit late to be trying to suppress it in ours?
12. While gay marriages produce some gay children, why do heterosexual marriages do the same?
13. Since we're going back to first principles, would you mind adding a section that makes wives the husband's property?
14. Which of these other steps - all Biblically endorsed - should be taken to preserve the sanctity of marriage: allowing men to take on concubines in addition to their wives, stoning to death any new wife found not to be a virgin, requiring women to marry the man who raped them, banning interfaith marriages, and banning divorce?
15. Given the foregoing, is it fair to describe those pushing the marriage amendment as heretical, hypocritical and blasphemous Christians? History shows that such people are far more dangerous, on average, than gays. Shouldn't we do something about them before we worry about those gay weddings?
THANKS TO energetic National Park Service Ranger, Sam Swersky, the 45th anniversary of the civil rights protest at Glen Echo Park was celebrated. Glen Echo was once an amusement park near Washington DC and from its inception in 1911 until 1961 it was off-limits to African-American citizens.
In the summer of 1960, a local movement formed to end the policy of segregation at Glen Echo Amusement Park. Howard University students, members of the Bannockburn community, the local NAACP, Cedar Lane Unitarian Church and the Wheaton-Kensington Democratic Club, all picketed the park on a daily basis, as well as petitioned the Montgomery County Council, (because public school buses were bringing white kids to Glen Echo to swim and taking black Montgomery County kids to the D.C.'s Francis Pool for swimming lessons.) There was a legal battle as well, which went all the way to the Supreme Court.
Your editor was a reporter for WWDC and Deadline Washington News Service at the time. In August 1960 I wrote in a letter:
"Have been covering some of the anti-segregation demonstrations around the Washington area. The results here have been hopeful. Good police work has kept violence to a minimum although the presence of neo-Nazi Lincoln Rockwell and his "troopers" doesn't make the situation any simpler. Quite a few lunch counters have been desegregated. Glen Echo Amusement Park is resisting despite a month of picketing and a Bethesda theater is also refusing to back down."
In February 1960, four black college students had sat down at a white-only Woolworths lunch counter in Greensboro, NC. Within two weeks, there were sit-ins in fifteen cities in five southern states and within two months they had spread to fifty four cities in nine states. In April the leaders of these protests had come together, heard a moving sermon by Martin Luther King Jr. and formed the Student Non-Violent Coordinating Committee.
The summer I had first worked for WWDC I had covered the passage of the first civil rights legislation in Congress since 1875. Now it was getting serious. By the end of June, I was covering the desegregation of lunch counters in Northern Virginia after sit-ins by groups led a Howard Divinity School student, Lawrence Harvey. Harvey then took his troops to Glen Echo.
Although I saved few recordings from that period -- tape was expensive and usually recycled -- I still have the raw sounds I made that day. On it a guard and Harvey confront each other:
Are you white or colored?
Am I white or colored?
That's correct. That's what I want to know. Can I ask your race?
My race. I belong to the human race.
All right. This park is segregated.
I don't understand what you mean.
It's strictly for white people
It's strictly for white persons?
Uh-hum. It has been for years. . .
You're telling me that because my skin is black I can not come into your park?
Not because your skin is black. I asked you what your race was.
I would like to know why I can not come into your park.
Because the park is segregated. It is private property.
Just what class of people do you allow to come in here.
So you're saying you exclude the American Negro.
Who is a citizen of the United States.
As a biracial group marched outside with picket signs, Harvey led a group inside to sit-in at the restaurant and mount the carousel horses. The case ended up in court and less than a year later, the park opened for all.
I don't know for sure that you're out there at all, but from what I read and hear there's a pretty good chance, so I thought I would pass this along.
You may be tapping my phone, scanning my e-mails and collating my other electronic ephemera, but you don't know me.
Any writer can tell you this: you don't reveal character or describe an individual by just dumpster diving for data. Your efforts are not only intrusive, they're ineffective as well.
An individual is a product of experiences, some of which - though influential - may have been lost to memory, some of which - though searing - may never be mentioned again, and some of which - though exhilarating - may lack the words to describe them.
You are eavesdropping only on my front to the world. If I am down, I try not to bring my friends down with me. If I am mad about some public act, I try not to bore my friends too much about it. If I am mad about some private act, I try for the calm and restraint I do not feel. If I am really happy, I often lack the words to express it well. And if I have been given something, I try for gratitude even though I have no idea what to do with the damn thing.
You do not know my dreams, my fears, my stupid excesses of doubt, or how I alternately rebel against, resent or am resigned to the entropy of aging. You do not know how sad I am about the world that the people you work for will leave my children and their children. You do not know that I do not like vinegar, have never read Joyce's "Ulysses," sometimes fall asleep while waiting my turn in a board game, never watch football, or that two of my uncles were killed in wartime service to our country and another never smiled from the day of his return from the front to the day he committed suicide. You do not know that my utopia would have, above all, no need for dentists as well as using "This Land is My Land" as our national anthem.
If you were to really know me, you would need to hear hundreds of stories, visit hundreds of places and meet hundreds of people. Only a few of them are listed on my credit cards.
But you are not only misinformed. You are also a thief. You are stealing my privacy, my civil liberties, my peace of mind and the incalculable pleasure of not having to worry about what someone else is doing to you. You are also a vandal. You are throwing rocks at the Constitution, scrawling graffiti on our national conscience, wrecking our reputation and scratching the face of America.
And still you do not know me.
I don't know you either but I suspect you are earnest and were attracted to your dubious trade by its romantic and macho aura, recruited by the excitement of being a spy. Deceived by your employers, however, you have ended up just another technician in the dismantling of the First American Republic.
I believe you sincerely believe the contrary but I wonder about some things. For example, how many courses in American history did you take before embarking on this task? Did you ever read Benjamin Franklin's autobiography? Do you know who Thomas Paine was? What do you think Patrick Henry meant when he said, "Give me liberty or give me death?" Would you have tapped his phone, too?
And what about those who rebelled against the law to win rights for slaves, for women, for workers? Many of them broke the law. Were they bad Americans because they sought to become full Americans?
Do you know what the Palmer raids were? Do know why good Americans stood up to Joseph McCarthy? What did Woodrow Wilson mean when he told a group of new citizens "You have just taken an oath of allegiance to the United States. Of allegiance to whom? Of allegiance to no one, unless it be God. Certainly not of allegiance to those who temporarily represent this great government. You have taken an oath of allegiance to a great ideal, to a great body of principles, to a great hope of the human race." What are some of those principles? Did Wilson know what he was talking about or should he have been under surveillance, too?
If you have a hard time with these questions, maybe you're in the wrong business. You're judging people without knowing the rules of the game. You're determining who is a good American without knowing what that means. You're mistaking loyalty to the ambitions of a particular set of politicians at a particular moment as loyalty to a country, its land and its people.
But even though you are a thief and a vandal, and even though I suspect you don't know enough about America to judge me fairly, I'll make a deal with you.
You come out of your hole long enough to meet me someplace over a drink or over dinner. I'll tell you my stories and you tell me yours. No interrogation, no tape recorder, no probing into each other's private business. Just two Americans sitting and talking about what it means to them to be an American.
If you don't take this deal, I'll think of you not only as thief and vandal but as a coward as well.
If you do take this deal, you'll probably discover that we're both pretty good Americans, but that you've been wasting your time, and that you may even want to find a new job. 
A tale of two chiefs
What has happened to Washington DC in recent years could be found in two Washington Post stories just a few days apart. In the first, after the shootings in Mt. Pleasant, Chief Ramsey - whose harsh chutzpah looms over his competence like Arnold Schwarzenegger standing next to Gary Colman - described the gang members of the neighborhood this way: "You can save some of them; others you got to lock up. They're beyond redemption, at least the way I see it. Maybe the clergy can save them. I can't."
Three days later the Post ran a profile of former police Chief Ike Fulwood and his efforts to organize African-American men as mentors for the city's young men. Speaking of the youths he advises, Fulwood - a graduate of Eastern High who has been mentoring since 1971 - said, "I'm fascinated by them. . . Kids need a mentor for guidance, so they can have hope for the future."
According to the Post, eighty-two men have signed up to mentor, and 24 have been paired with a child. About 45 men have completed training and are waiting to be matched.
One chief has given up on everything but force; another - older, wiser, and far more deeply rooted in the city - has never stop trying.
The difference is a metaphor for what has happened to DC. Even in some of its worst moments - such as after the riots - compassion, concern and constructive effort was both far more valued and far more apparent than in this increasingly narcissistic city.
You see it in little things. When the trouble broke in Mt. Pleasant, I recalled a meeting of the NAACP task force on police and justice sometime back at which a former cop turned community activist described one of Ramsey's men threatening a group of latino kids in Mt. Pleasant, informing them that "I own this street." Then there was the middle aged white man at Frager's hardware on the Hill, pointing out a 'line starts here' sign to a black man he thought was cutting in. In fact, the presumed offender was just standing there waiting for someone, and responded to the contrary implication with a burst of ethnic invective. Meanwhile, in Cleveland Park a white woman at a forum talked about how she likes serving on juries because she gets to meet with those from an otherwise unknown part of the city.
You don't need disturbances or killings to know something is wrong. All you have to do is listen. Listen to a city becoming divided by class and ethnicity, one part speaking of a renaissance, the other mostly silent in despair and anger but sometimes popping like a firecracker in the otherwise quiet night of our complacency.
Washington has always run the gamut from glitter to misery, but for much of its recent history it handled this bifurcation better than many places. There was a jail uprising but no Attica. There were riots but no guerrilla warfare because Mayor Washington had the courage to tell the feds he would not let them shoot to kill. And for all of Marion Barry's faults, he helped create a Chocolate City where whites felt comfortable as well. Always high on his agenda were summer jobs for kids.
One hopeful sign was that at a time when cities throughout America were being defaced by graffiti - that bellwether of urban collapse - DC remained remarkably clean. Was it the summer jobs program? The number of concerned and committed blacks in high places? Whites who stayed in Washington for the social rather than the economic ecology? Police officials like Ike Fulwood? Roving leaders working with gangs? A more decent budget for recreation? A greater concern for public education?
Lump them all together and there was one thread too often missing today: people who cared, people who took responsibility, and people who gave of themselves to the larger city. And when something went wrong, they took some of the blame themselves and tried to make things better. Instead of zero tolerance there was a plenitude of commitment. It might just work again.
When police riot
What happened during the recent Washington demonstrations - just as a couple of years earlier in DC, Philadelphia and Seattle - can properly be classified as a police riot. In all four cases, the major crimes were committed not by the protesters but by law enforcement.
Most recently, approximately 650 peaceful protesters were arrested in Washington on one day, the third largest mass arrest in the city's history and the second greatest on a single day. The offenses with which they were charged were almost all minor misdemeanors that in a civilized society would have been handled with a ticket or a summons. Instead the protesters were manhandled, assaulted, dragged, handcuffed and then incarcerated under conditions that constituted deliberate mistreatment in some cases bordering on - as in the case of those left cuffed long hours from hand to foot - a form of torture.
Many, if not most, of the protesters had committed no offense at all. They had simply been at the wrong place at the wrong time when the DC police decided to coral anyone within a certain area and take them off to jail.
In doing so, the police committed a number of serious criminal offenses including false arrest - seizing those who had been given no lawful order to disperse and, worse, physically preventing them from leaving the scene. The police also engaged in assaults on protesters.
These were not just "violations of civil liberties" but actual criminal attacks that within another context - with the offending party out of uniform - would have been easily seen as a felony. In uniform or not, however, those engaging in such offenses should be confronted not just with civil actions but with criminal complaints. Further, the fact that the offenders were in uniform aggravated the assaults on at least three counts:
- The offenses were not only against the victims but against the laws and the Constitution the officers had sworn to uphold.
- The offenses damaged the reputation of those law enforcement officers who try to enforce the law fairly.
- Worst, the offenses intimidate those who wish to express their constitutional rights, clearly discouraging them from doing so.
The media has made sure, however, that most people don't understand this. Through endless TV police shows and the blasé manner in which the press covers police brutality and misconduct, the media has encouraged the public to accept criminal excesses by the police and has encouraged the cops to engage in them. In the Washington example, the Washington Post prior to the demonstrations beat the drums for a police crackdown and afterwards, the so-called alternative weekly, City Paper ridiculed the protesters and had no substantive criticism of the police.
We could find only one mainstream journalist - Adrienne Washington of the Washington Times - who spoke up for the First amendment and one local law professor who wrote an op ed piece criticizing the police.
In such ways has the media deeply enabled the sociopathy of contemporary law enforcement, the end of constitutional government, and the growing and completely rational fear of law-abiding citizens that speaking up for one's rights has become too dangerous to attempt.
One of the best descriptions of the proper role of a law enforcement officer was that delivered by Alexander Hamilton to the first group of officers of the Revenue Marine, later the US Coast Guard. Said Hamilton:
Little so well measures how far this country has fallen than the archaic sound of these wise words.