Any Means Necessary
by Patricia J. Williams
The Nation magazine, November 26, 2001
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
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
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
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.