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The Rights of the People: How Our Search for Safety Invades Our Liberties Hardcover – Deckle Edge, April 19, 2011
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From Publishers Weekly
The wars on crime and terrorism have turned into a war on privacy and freedom, according to this provocative but sometimes overwrought exposé of infringements of the Bill of Rights. In this first of two volumes, Pulitzer-winning journalist Shipler (Arab and Jew) focuses on the Fourth Amendment's guarantees against unreasonable search and seizure, and finds violations that remind him of his days covering the Soviet Union. Most shocking is his ride-along reportage on the Washington, D.C., Police Department's bullying searches for guns and drugs in black neighborhoods. (Random stop-and-frisks and automobile searches are so ubiquitous, he observes, that African-American men automatically raise their shirts to expose their waistbands when cops approach; residents are puzzled when he tells them they have the right to refuse police searches.) When the author turns to less intrusive surveillance, like the Bush administration's warrantless wire-tapping, his outrage-"government snooping destroys the inherent poetry of privacy"-is less compelling; he writes as if search engines sifting e-mails are tantamount to Hessians kicking in doors. (Apr.)
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“Provocative . . . Shipler vividly describes a world wholly foreign not only to Supreme Court jurists but to most Americans . . . If the right of privacy is to survive, it will be because citizens, enraged by stories like those Shipler tells, recognize that it is not enough to shrug one’s shoulders and say, ‘I have nothing to hide.’”
-David Cole, The New York Review of Books
“Compelling . . . Shipler does a masterful job of interweaving poignant anecdotal accounts of his first-hand observations of the gun and narcotics units of the Washington Metropolitan Police department with trenchant, insightful, and spot-on legal analysis.”
-Stephen I. Vladeck, Washington Independent Review of Books
“Important . . . I suspect Shipler’s arguments will speak to . . . most Americans . . . The Rights of the People is timely, eloquent, solid, fair-minded and, on almost every page, upsetting.”
-Craig Seligman, Bloomberg
“Vivid . . . A valuable reminder that we all suffer a loss of liberty when the government casts aside the safeguards of the Constitution.”
-Ken Gormley, Pittsburgh Post-Gazette
“This powerful book demonstrates the reality behind abstract debates about liberty and security, and shows us what happens when liberty starts to erode.”
-Linda Greenhouse, author of Becoming Justice Blackmun
“David Shipler has done something extraordinary. He took the guarantees in our Constitution and explored, on the ground, how they were actually being applied in the lives of Americans. The result is a wonderful book that shows how large a gap there is between constitutional promises and reality.”
-Anthony Lewis, author of Gideon’s Trumpet
“This is a book that all Americans should read carefully.”
-Maxwell McKee, Sacramento News and Review
“An insightful analysis of the erosion of basic civil liberties within the past decade . . . A sobering look at the rights Americans take for granted.”
-Starred review, Booklist
“Shipler’s sure grasp of frequently impenetrable Supreme Court decisions (translated nicely for the non-lawyer), his engaged reporting and his generally evenhanded assessment of the reasons for these sometimes abrupt, mostly incremental intrusions on our freedoms make for an informed, persuasive argument. A timely call for vigilence.”
“Provocative . . . Shocking.”
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Legal practitioners know that the Constitution, although a guarantor of certain fundamental rights, is not written in stone. Instead, the Constitution is worked and reworked each generation to meet the needs of the nation it serves. Thus, although the Fourth Amendment prohibits unreasonable searches and seizures, the courts are free to tinker with what is, and is not, regarded as reasonable. In times of perceived national threat, the courts reflexively trade a desire for security for liberty. The result is an assault on civil liberties under the guise of such rhetorical flourishes as “the constitution is not a suicide pact.”
We are often tempted as a nation to trade security for liberty. Our first Alien and Sedition Acts were passed but seven years after ratification of the Bill of Rights, in response to fear of all things French after the revolution of 1789 showed just how far popular passion could go. It was a crime, under these acts, to write with too much hostility about the government.
Liberty took a beating during the Civil War, too, when President Lincoln suspended the writ of habeas corpus, and speech too critical of the government was transformed into a crime. Indeed, hundreds of newspapers were shut down for a time. Eight papers that remained open were forbidden the use of the United States mail.
Fear overtook reason again during the First World War. An Espionage Act led to the prosecution of a couple thousand antiwar protestors; socialist newspapers could not be sent through the mail; and, in 1918, a new Sedition Act criminalized dissent.
During the Second World War we gratuitously imprisoned Japanese-Americans and German-Americans in concentration camps without hearings of any sort, and we experimented with military tribunals for the trial of men for acts committed on our shores.
We went a little haywire again during the Cold War, seeing communists everywhere, and imprisoning those who, like my father in-law, refused to take an oath of loyalty to the United States.
And today, Shipler argues, we labor under a new threat, this one external, a threat of terrorism, and so in the post 9/11 era, government once again expands at the expense of the people. Habeas corpus is at risk. Surveillance is on the rise. And the constitution, that seemingly noble document that is supposed to protect we the people from our government, has been stretched like Silly Putty to justify all manner of warrantless searches.
Shipler is convincing in his brief sketch of the manner in which the constitution’s protection of liberty expands or contracts depending on the national mood. But he is at his best doing what he was trained to do: reporting. He does more than report on what takes place in the streets. Although he is a non-lawyer, he has read the leading constitutional cases. He writes about the law without the quirky idiosyncrasy of a law professor looking for tenure. He writes the way we should all write, as a citizen who cares.
Shipler was embedded with the Washington, D.C., police force for a while, accompanying police officers on nightly patrols through the city. What he saw won’t shock criminal defense lawyers: police officers routinely engage in illegal stops, and justify it by saying that the ends, getting illegal guns and drugs off the streets, justify the means. The officers resort to free-wheeling tactics better suited to Hobbes’ state of nature and then justify their conduct when challenged with half-truths and sometimes outright lies. The true casualties in these confrontations are communities, in this case communities of color, brutalized by officers who behave like occupying invaders, rather than community resources.
One needn’t be Black and poor to experience this. It is enough to be Muslim. Shipler writes about the prosecution of Brandon Mayfield in Portland for his supposed role in the Madrid bombings of 2004. The FBI had the man all but sent to death row based on a bogus analysis of a finger print that it claimed was Mayfield’s. If Spanish lawmen had not insisted the print was not a match, Mayfield might well have been convicted.
He writes as well of librarians, and the FBI’s routine misuse of so-called “national security letters” to avoid the requirement that a warrant be reviewed by a judge before private records are searched. Not since the CIA and FBI were turned loose on domestic dissent in the 1960s and 1970s has the government been so bold, so aggressive, in its surveillance of Americans who live and think outside the mainstream.
Criminal defense lawyers will read this book with a weary sense of recognition. Shipler has compiled in one volume evidence of all we see in the day-to-day practice of law. There is nothing new here, save the elegant presentation of all that the government is now doing in the name of security.
How the general public reacts to this book will be the real litmus test. My hunch is that the book will assume iconic status among dedicated civil libertarians, but be scorned by the right, who will regard Shipler’s former affiliation with the New York Times as some sort of proof that he hates America, that he is part of the media-academic conspiracy to undermine the nation. It is unlikely the book will persuade those walking down the middle of the road, without strong commitments on civil rights and liberties.
That’s a shame. We get the government we deserve, Shipler reminds us. If we are prepared to live like so many sheep, herded, prodded, penned by shepherds with badges, the government will be sure to oblige us, and judges will more often than not oblige with novel interpretations of the law. I love this book. You should too.
And, that's just in regular criminal jurisprudence.
Shipler also tackles the post-9/11 world of FISA and terrorism, while showing that the civil liberties erosion there has had spillover into regular criminal court proceedings.
Best of all, he doesn't just write about this from an academic point of view.
He rides shotgun with DC Metropolitan Police, on the night beat, Southeast DC, on the guns and drugs roundup. He sees how some cops bend the rules on searches, simply by their "copness." He sees how much of the black-majority community is semi-intimidated by this, while many of the actual illegal gun owners or drug sellers know it's a game, and do the best they can to play. He sees how this doesn't necessarily improve the protection of law abiding residence of the area, contra the warped mindset of the Supreme Court.
A great read.