Since September 11, President Bush's war on terror has highlighted issues of immigration, nationality, race and culture, and widened the divide between 'insiders' and 'outsiders'. And what that means, according to law professor and author Patricia Williams, is that a great many Americans have more to fear than ever. Maya Jaggi reports
Saturday June 22, 2002 The Guardian
Patricia J Williams was snagged in thick traffic on her way to Columbia Law School in New York's Upper West Side. A lethal explosion in downtown Manhattan had triggered panic at a possible terrorist strike, though the cause turned out to have been nothing more than a faulty boiler. Williams, a Columbia law professor and former attorney, shares the fear of terrorism gripping the city and its hinterland. Yet, once settled in an office, she softly warns that America's response has triggered "one of the more dramatic constitutional crises in US history".
Since President George W Bush launched his "war on terror" in the wake of September 11, he and attorney-general John Ashcroft have pushed through "anti-terrorism" measures that have had constitutional and civil rights lawyers warning of an encroachment of powers akin to a police state. Blanket secret detentions on US soil have been likened by human rights groups to "disappearances" under Latin America's military regimes. This amid a climate of suspicion and recrimination fuelling a surge of attacks on "Arab-looking" Americans. Yet the administration's measures have been marked by a limited public outcry. It is lawyers who are leading a slow challenge to them through US courts.
Williams is among relatively few Americans raising their voices in alarm. She is disturbed by the apparent ease with which fundamental rights, such as habeas corpus - the right to a court hearing before prolonged detention - are being set aside in the name of an emergency that may have no end. "I appreciate the necessity for extraordinary measures in wartime," she says, "but an indefinite period of emergency measures worries me more than a list of finite military objectives. We need a clearer definition of what we're at war with. The 'war on terror' is making war not on acts of terror, but on things that terrify us." In this "war of the mind", the enemy is apt to become "anybody who makes us afraid".
The secret detention without charge, and transfer to military custody, of the US citizen Abdullah al-Muhajir - formerly Jose Padilla - on suspicion of plotting to detonate a radioactive "dirty bomb" in Washington is also cause for alarm, she believes. There is, she says, a "dangerously non-specific policy regarding who gets to go to a court of law, and who can be confined secretly and indefinitely".
On sabbatical from Columbia, Williams lives outside Boston, in Massachusetts, with her adopted son, aged nine. In 2000, she won a MacArthur Fellowship - worth $500,000 over five years - to pursue her intellectual interests. She was completing a critique of "racial profiling" - a practice civil libertarians argue is illegal since it makes race alone grounds for stop-and-searches or questioning - when the September 11 attacks took place. Williams is now updating the book, aware that global counterterrorism aimed, in the main, at ethnic groups such as Arabs or Muslims has lent a fresh urgency to the subject.
Her misgivings are rooted not only in legal training but in a historical perspective as a child of the civil rights era, and her perception of the persistent workings of race in post-Jim Crow, post-segregation America. In her book The Alchemy Of Race And Rights (1991), now a feminist classic, and its follow-up, The Rooster's Egg (1995), she invented a novel form of legal writing by enlivening dust-dry jurisprudence with literary theory, social research, memoir and often ironic personal anecdote, raising subjects from Oprah to OJ to pose fundamental questions about rights and justice in late 20th-century America.
Her BBC Reith lectures five years ago, published by Virago as Seeing A Colour-Blind Future (1997), argued that the "liberal ideal of colour-blindness" was still far distant. What, she asked, had become of civil rights if she, as an African-American, had to pay a higher mortgage than a white home-buyer on the grounds that by moving into a white neighbourhood she would spark "white flight" and lower her house's value? Or if she found herself barred on sight by the entryphone security at a Benetton store - the clothes brand that flaunts an ethnic rainbow of models?
She was unprepared for the media mauling. Although a "tremendous honour", the lectures introduced her to "the best and worst of the British press". While there may have been legitimate objections to selecting an American rather than a Briton as the first black Reith lecturer - and only the fourth woman in almost 50 years - US neo-conservatives were marshalled in the Daily Mail to attack what one called her "virulent, anti-white racism". Williams, who has written with subtlety and verve about the tension between America's rugged individualism and the tendency to stereotype, found herself caricatured as a "militant black feminist" and single mother. "I was also compared to Al Sharpton and Louis Farrakhan, and described as 'no Toni Morrison'." Her eyes widen in disbelief.
The BBC received almost 1,000 letters and phone calls in a week about the lectures, "before I even opened my mouth". They included far-right hate mail addressed to her and her son, then aged four (whose name she still prefers to keep out of print). Being savaged by Melvyn Bragg on Radio 4's Start The Week was "the most painful - it took me off guard. He described my work as 'violent', which offended my Quaker sensibility." Yet much of the criticism abated once her first lecture had aired on Radio 4. While the Guardian's then radio critic, Anne Karpf, savoured her "sensitivity, wit and poetic turn of phrase", the Daily Telegraph reviewer, Gillian Reynolds, asked what her attackers were so afraid of. "All our submerged anxieties about race, class, gender and academic status have already been let off the leash at her in what seems to me a very un-British display of vile prejudice," she wrote. "Try listening."
It is partly the insights of her Reith lectures that have led Williams to caution against the war on terror. "The issues of immigration, nationality, race, culture and categorisation are bound up with the global expansion of anti-terrorism," she says. According to US attorney-general John Ashcroft, "Foreign terrorists who commit war crimes against the United States . . . are not entitled to and do not deserve the protections of the American constitution." Aside from the presumption of guilt in this statement, it leaves some 20 million non-citizen US residents subject to what Williams calls a "new martial law: Bush has been seeking to distinguish our constitutional rights, which belong to citizens alone, from human rights, which don't have the same status; to distinguish the legal protection owed a citizen from what's owed a non-citizen. Before, due process did extend to everyone." Yet with the indefinite detention of al-Muhajir, announced on June 10, even "fully-fledged citizens may not be seen as 'deserving' the protections of the American court system," she says.
Most attention has so far focused on the suspected al-Qaida and Taliban fighters captured in Afghanistan, particularly the 300-odd held at Camp X-Ray in Cuba's Guantanamo Bay: President Bush's order last November that they would be tried secretly in military tribunals, without traditional legal safeguards against wrongful conviction, proved so contentious that he was forced to make concessions on the rules that would govern the tribunals. Yet "homeland security" has wider implications.
According to Amnesty International, some 1,200 people were detained after September 11 - "mainly men from Muslim or Middle Eastern countries", though some may have been US nationals of Middle Eastern origin - of whom 327 were still in detention in February, when the justice department stopped releasing figures. An unknown number are still detained, their location often undisclosed. "That's an astonishing number," Williams says. "Exercised or not, it's a very dangerous power."
An interim rule brought in after September 11 allows the US immigration service to hold people for up to 48 hours without charge, or indefinitely "in an emergency, or in other extraordinary circumstances". Of charges brought, most have been for routine visa violations that do not normally warrant detention. Williams cites one couple "who have been here for 18 years and led exemplary lives. They have a visa violation and are being deported. It's a disproportionate response - it only inflames things. I've seen it in African-American communities, where people wanted greater policing. But it ends with communities distrusting the police. That's how urban riots occur."
In the immediate aftermath of September 11, up to 5,000 men, aged between 18 and 33, from Middle Eastern countries were rounded up for questioning in what critics see as a dragnet based on ethnic profiling, not evidence. Williams's forthcoming book grew from notorious instances of male motorists stopped in New Jersey for what is ironically dubbed "driving while black". As she has written, "the kind of profiling that seems to inform the majority of stops and searches is usually based on statistical relations so vague as to be useless . . . premised on diffuse probabilities about looks and dress, ethnicity or nationality, class or educational status." Targeting neighbourhoods in a country in which housing is still often segregated may result in a kind of racial profiling. "The statement, 'There's a greater crime rate in poor or deprived neighbourhoods' becomes 'so most people in these neighbourhoods must be criminals'. To my ear, as an African-American, it's the kind of thinking that turns whole communities into suspect communities . . . I worry that in time of emergency, these policing tactics have become legitimised and exported."
Rudolph Giuliani's "zero tolerance" approach to crime has admirers. "But there was a huge scandal," Williams insists. She cites New York's Washington Heights: "Crime did drop because of a more visible police presence in an area that had been neglected, but not without police corruption that poisoned relations with the community, and setting up of the much vilified 'cowboy' Street Crimes Unit - which included the men who shot Amadou Diallo [an unarmed west African man killed by police in 1999].
"There was a ringing of neighbourhoods; 90% of the male population, and half the female, was being stopped, arrested, frisked and abused. If you pick up half the population, crime will drop. But they arrested many people who weren't criminals and the rate of complaints went up, from 1,000 to 53,000. Whole communities become alienated. We should be wary of those lessons."
For Williams, the supposed trade-off between freedom and security in combating the threat of terrorism is a false choice. Her point is that such profiling is not simply unfair but an ineffectual misuse of data; it delivers neither security nor justice. "It's a panic measure that diverts resources we should be expending on specific threats." In her view, "we must be wary of persecuting those who conform to our fears instead of prosecuting enemies who were, and will be, smart enough to play against such prejudices." She says, "Random checks or profiling aren't going to stop the determined operatives who are trained to defy visual expectations. The moment one has a fixed image, say of a man, it'll be a woman next time." Both the British "shoe bomber" Richard Reid, and the Chicago Latino al-Muhajir, bucked the expected profile of an "Islamist terrorist". Mindful of a historical "tendency to see evil embodied in witches, in Jews, in blacks or heathens", she warns: "We're buying into the idea that we can stop terrorism if we investigate 'outsiders' in our midst."
She quotes aghast from an article by Harvard law professor Richard Parker in the Harvard Journal Of Law And Public Policy, advocating a "four-point test for love of country" to rival David Blunkett's compulsory "citizenship tests" for would-be migrants. Set out in the nationality, immigration and asylum bill, those entail exams in the English language and British institutions. Parker, meanwhile, ranks subjective reactions to the September 11 attacks according to whether people felt it was an attack on the US which should now defend itself (patriotic) or worried more about US "past misdeeds" and "the way our actions are perceived abroad" (unpatriotic).
For Williams, the test exemplifies a new xenophobia. "It says, 'Love of country involves drawing a line between insiders and outsiders, Americans and others. It privileges one over the other.' I think I might fail a couple of those tests; they could make suspects out of Quakers, or people with dual citizenship, or people who like to travel, or who are as concerned about 'outsiders' as 'insiders' because they all fall into the category of 'human'. In the question of what's unpatriotic, the American psyche is very fragile now. I appreciate the fear of terror, but trying to define the inside from the outside in a moment as diasporic as ours, and a country as diverse as ours, could splinter us even further."
Yet even "insiders" are now subject to expanded surveillance. According to another critic, Ronald Dworkin, Quain Professor of Jurisprudence at University College London, the USA Patriot Act passed last October sets out a "breathtakingly vague and broad definition of terrorism and aiding terrorists" and sweepingly expands the government's powers to search the premises and property of even its own citizens. Williams sees it as "an unprecedented merger between the functions of intelligence agencies to foresee crimes, and law enforcement to punish crimes." She feels "advantage was taken of the times" to push through the 342-page act. "It swept into force, but it's an intricate act; it wasn't devised just in the wake of September 11. It satisfied ideological pressures from the right that in calmer times would have been resisted. As a lawyer, I'm a great admirer of the constitutional balance; both the USA Patriot Act and the executive order establishing military tribunals threaten that balance."
Why then, though there is growing protest from lawyers and civil liberties groups, has outrage been so muted? The Harvard law professor Alan Dershowitz has even argued that torture should be permissible under special warrants, in cases where time is of the essence - a supposed "ticking time-bomb" scenario - while a CNN poll after September 11 found 45% of Americans would not object to torturing someone if it would provide information about terrorism. Williams hints at a reason other than simple fear: it may be easier for some traditional liberals to believe that only those who have something to hide have anything to fear. They belong to a "class of those who have never been harassed, never been stigmatised or generalised or feared just for the way they look," she says. "They feel this will never be levelled against them - though that's fraying at the edges with airport security." Now, well-dressed professionals are themselves a "suspect class".
Williams grew up without such illusions. She was born in Boston in 1951, into the only black family in a "white, working-class neighbourhood". Both her parents were college-educated; her mother was a teacher, her father a technical editor. From her maternal grandmother and great aunts Williams learned that the family had "escaped from plantation society in Tennessee, where the families that owned our family were still in charge". Her grandmother fled with her sisters to Boston, "perceived as the cradle of the abolitionist movement".
Many of their neighbours were recent immigrants - Russian, Portuguese, Irish, Italian and German. "I grew up very aware of parallels between the black struggle for civil rights in the south and pogroms in Russia, or the British treatment of the Irish," she says. "Each of my neighbours had a story." Her aunt was a journalist, "one of the first UN correspondents; she was definitely the most romantic member of my family. Through her, I had a tremendous sense of what the world could be."
The family joined the civil rights movement and the National Association for the Advancement of Coloured People. She was "taken out to march before I could read". They were "tumultuous times; Boston was far from the south, but the news was everywhere. I was tormented; stones were thrown and there was name-calling." When a few black families moved into the neighbourhood, "the area changed overnight. Whites who had seen me born and baked me cookies at Halloween and grown up with my mother now fled for their lives." She sees the resulting de facto segregation as "part of the first great backlash to the civil rights movement", the second being a move against equal opportunity "disguised as a fight about reverse discrimination and 'quotas'."
Williams was expected to become a school teacher, one of few professions open to black women. But as a first-generation "affirmative action baby", she found law school was now open to her. "I grew up when the laws of Jim Crow were being overturned by lawyers going to court, all the way up to the supreme court; they were appealing to the constitution, arguing that this was not American. I developed a sense of possibility." Yet she had reason to beware of the law. She tracked down the contract of sale for her great-great-grandmother, Sophie, who was bought at the age of 11 and soon after impregnated, by a white slave owner named Austin Miller, who was anxious to increase his "stock".
Miller, Williams's great-great-grandfather, was also reputed to be one of Tennessee's finest lawyers. "The manipulation of law has been responsible for some of the worst tragedies in American history," says Williams, mindful of how her ancestor was listed as property by age and sex, not name, and how the law underpinned slavery as well as Jim Crow segregation. "The appeal to law is far from perfect. But it's one of the better ways to resolve aggression and injustice. I see no other way."
At Wellesley College in the late 1960s and early 1970s, "people wanted to invite you home for the specific purpose of shocking their parents". Students' brothers would date her "out of solidarity", while playing the Rolling Stones' Brown Sugar. It was an "all-girls school with a reputation for being terribly refined, and training many women in positions of power; it was a wonderfully protected environment at a time when women weren't taken seriously as scholars." By contrast, her class at Harvard Law School in the mid-1970s was only 8% women. Old-boy networking and humiliating initiation rites were rife. "There were rituals and inner circles, cigars to be smoked. It was my first taste of what it meant to have your opinion weigh less than men's. I learned to roll with the punches. You had to fight hard just to be heard."
Williams worked in consumer protection at the city attorney's office in Los Angeles, and the Western Centre on Law and Poverty, but left out of frustration. "I loved practising as a trial lawyer, but I burned out. Many of my clients in LA were Mexicans, but [President Ronald] Reagan limited the ability to represent undocumented persons; I felt I needed to write, not just argue their cases in court."
As a law teacher, Williams found herself the first African-American, or the first black woman, at each of the colleges where she was hired. She soon gained a reputation for "troublemaking". Williams wrote: "I don't think I am either remarkable or a troublemaker . . . My attempt to share the insights of women, of people of colour, of a certain degree of powerlessness is what human beings do - they bring their insights and sensibilities along with their physical presence. And if women enter environments where men have only been talking to men, the conversation is bound to change." She kept a journal, and shared it with students. "Many women would come to me, trying to make the institution more responsive." The Alchemy Of Race And Rights grew from those journals.
Her work has been criticised for being personal and anecdotal. "This emotional stuff leaves me cold," one male colleague remarked. "It's not how I teach contract law or bring a piece of litigation." She laughs. "I don't write briefs like that when I'm representing a client. I don't see my writing as subverting law as it's practised, though it may challenge people to be more creative." She adds: "I wrote at a time and to an audience when the first person was strictly forbidden. But an individual story can be enormously informative. I go back and forth between the abstract and the personal."
She often writes of her son, whom she adopted "after an engagement broke off; I walked into an adoption agency on my 40th birthday, thinking, it's now or never". Though she anticipated refusal "because I was single and 40", she expressed no racial preference, and soon had a two-day old boy. "There's a seven-year wait for 'healthy white newborns', but a shortage of parents prepared to adopt black children," she says. "I had my son, sweetly, in nine months." As for men, "I haven't had the time. Parenting keeps you busy. When I've taken care of my son's needs, and as he grows, I might don parrot feathers and a pair of red mules, and hit the social circuit. Right now, life is quiet."
She took time out from teaching partly because of the death from cancer of her brother-in-law, who was also, like her sister, a lawyer. "We were all together at law school," says Williams. "He was a very hard-working corporate lawyer and exemplar of that great Puritan American virtue, delayed gratification. He kept saying he'd take a holiday. I began to reflect on how short life is." She travelled to South Africa, the Caribbean and Europe, and lectured across the US, while "home schooling" her son and writing a fortnightly column in Nation magazine, Diary Of A Mad Law Professor.
"Much of what gets resolved in legal cases is filtered through the mass media, and often the law is trumped by public opinion," she says. "The dry questions of law are important to our judicial system, but in heated cases - from OJ to the Enron scandal - people don't want to hear. Increasingly, I've turned to journalism, where I get a huge response." She writes that "Americans suddenly seem willing to embrace profiling based on looks and ethnicity, detention without charges, searches without warrants, even torture and assassinations." While she is heartened by legal challenges to such steps, her aim is to stir wider debate. "I recognise I live in a democracy and I'm in a minority. The majority support Bush - but perhaps without understanding everything that's at stake."