Extended Phenotype

Naturally, I’m very glad that the Senate vote to cut off debate failed. I’m even more glad to see that Republicans Olympia Snowe (Maine), John Sununu (NH), John McCain (AZ) and 3 others voted to block the amendment. This is receiving a lot of jubilant press today, with good reason.

But I can’t help thinking that we just did exactly what Frist and the Republicans wanted. Anybody who can count knew the amendment wasn’t going to get a supermajority, and might not even get a normal majority. Normally this would mean that an amendment might not even come up for a vote, which would have been preferable from the Democrat perspective.

The FMA came up for a vote anyway, and it’s not because the Republicans thought a miracle would happen. It’s because they can tar-and-feather everyone who voted against it from now until election day. Expect everyone who voted to block today to be painted as “an enemy of traditional marriage” or worse. We’ve seen what the Republicans are willing to say in the press and in campaign commercials, so I’m expecting it to be fairly ugly from here on out. Republicans have already said that the issue would come up in critical races and areas, to mobilize religious conservatives to turn out in record numbers.

We might have just walked into a trap — progressives couldn’t vote FOR the amendment, but voting to block it opens one to attack in the months ahead. And this may be the issue which motivates record turnout for Republicans. I’m just hoping that all the other issues — the economy, Iraq, and a record of rampant secrecy and lies — will motivate Democrats and independents to turn out in record numbers as well.

If I see another editorial or poll asking, “will America elect a trial lawyer” I’m gonna throw up.

After all, things seemed to work out OK with Abraham Lincoln, who was a brilliant trial lawyer before becoming one of our greatest Presidents.

Obviously the press doesn’t have enough to keep them busy in the weeks before the convention.

Back in February, I spent a day in San Francisco talking with an old friend. We walked all around North Beach, catching up on our lives. The conversation kept returning, as it does these days, to the election in November. We talked about a couple of topics that have stuck with me — one was the future of liberalism in this country: what do we have to offer? In a more immediate sense, our conversation kept returning to Christopher Hitchens, to whose work my friend originally introduced me. Both of us had followed Hitchens’ work as an example of intelligent, critical leftist analysis. So we were amazed by his evident sea-change in favor of the war in Iraq.

In response to that conversation, I wrote the following in April of this year. Intended for publication, I never had the time to see it into the hands of a magazine or online forum that was suitable. So I’m posting it here, because I’m going to be writing soon on one of Hitchens’ key positions: that we are in a battle to preserve civilization against “clerical barbarism.”

Coming to Terms with Christopher Hitchens on Iraq (PDF, 165KB)

I’m following the comments on Ian Spiers, the Seattle photographer whose story I posted on yesterday. A comment from Shon Simpson showed up this morning which is worthy of analysis:

I normally don’t get involved with this liberal stupidity (most conservatives don’t because we have lives and jobs and families and we deal with facts and reality on a daily basis) but since a friend sent me a link to this annoying site, it was time to let people know what the stronger half of America thinks. Oh the poor poor bastard. He got ‘contacted’. He’s lucky he’s not in jail, which is where potential enemies belong during a war. Of course, the lunatic lawyer’s will prevent logical paths to security and victory under the guise of political correctness. I’m sure the ACLU would jump on this, just as they have with many others. Certain ethnicities need to understand that some of their undeserved “freedoms” are going to be violated while attempting to protect the public. The needs of the many outweigh the needs of the few. If a black person robs a bank, the police search for a black person. Simple, logical. As a result, some black people get unnecessarily harassed. Too bad. If a “brown” middle eastern looking person wanders around taking pictures, security forces are likely to contact them. Simple, logical. If you’re not doing anything wrong, it shouldn’t bother you. Perhaps he should reconsider his profession.

I don’t think these sentiments are exceptional among many Americans, but normally one hears them in bits and pieces (unless you listen to Rush Limbaugh or read Ann Coulter). They do, however, deserve as much rebuttal as we can give, because such sentiments lead inevitably to abuse.

Potential enemies….perhaps one of the best nuggets in Simpson’s post. What, precisely, is a potential enemy? Either one is actively working in service of an enemy or one is not. One is either arrested for cause, or one is not. The notion that the color of one’s skin or ethnicity could make one a “potential” enemy is what led to the internment of Japanese-Americans during WWII, exclusively by Executive order. Sadly, the Supreme Court upheld this internment using arguments not entirely different than Simpson’s in Korematsu v. U.S. (1944):

exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.

The sentiment to which Shon Simpson and the 1944 Court gives voice is tenacious in our culture, but ultimately unconstitutional. As Justice Scalia writes in the recent Hamdi v. Rumsfeld decision: “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion…” In the absence of a constitutional ability to preventively detain “potential” enemies, Simpson’s claim that Ian Spiers should be grateful not to be in jail shows either pure spite or something verging on racism. As an argument, it displays serious ignorance of what “due process” means.

Certain ethnicities need to understand….understand what? That we didn’t actually mean it when we ratified the Bill of Rights? Or that the Fourtheenth Amendment isn’t really the law of the land? Or that civil rights only apply when we’re not in danger? In fact, our rights are never more important than when we feel endangered. Because it’s the extreme cases where citizens and leaders, lashing out in search of a solution, can do the most damage.

Simple, logical racial profiling….it’s neither simple nor logical to make the analogy from a black bank robber who has committed a crime to Middle Eastern persons who haven’t. If witnesses and the security tapes show that a bank robber was most likely black (or white, or green), it is indeed logical for police search to concentrate on black (or white or green) suspects. The crime actually has occurred, and there is actual evidence pointing to the ethnicity of the perpetrator. In Ian Spiers’ case, no crime had occurred. Spiers’ point is entirely about racial profiling of Middle Eastern persons who have not committed crimes. The former is both logical and legal. The latter is illegal, and not even all that logical. Terrorists come in all colors, shapes, and sizes.

Spock as Constitutional Scholar….my favorite line in Simpson’s comment, however, has to be: “the needs of the many outweigh the needs of the few.” Regardless of whether Trekkies consider Spock v. Khan an important precedent, the statement as it stands is contrary to much of what our country and Constitution stand for. Much of the Constitution is designed to protect minorities (speaking generically) against the “tyranny of the majority.” Majoritarianism, or mob rule, was the Founder’s greatest fear, in fact. Limitations on Congress’ enumerated powers in Article I, separation of powers in general, and judicial review were all designed to prevent the troubling effect of “faction,” as Madison calls it in Federalist 10. Our Constitution, and subsequent constitutional history, are founded on a very different principle: “the momentary desires of the many shall not infringe upon the rights of individuals.”

I’m giving Shon Simpson’s comment far more ink than it deserves. But Simpson isn’t simply being an asshole in his comment, he’s displaying a shocking ignorance of how civil rights and our Constitution works if he actually believes what he wrote. And it’s precisely when we’re scared and under stress that we need to understand what’s permissible. The balance between rights, liberties, and an effective response to terror is a difficult one, and won’t be solved by reinstating internment camps and consulting Wrath of Khan for wisdom.

In case anybody thinks that we’re striking the right balance between caution and civil liberties in the wake of 9/11, I urge you to read Ian Spiers’ description of his treatment in doing public photography. Ian, a Seattle resident, was photographing the Ballard Locks for a photography class at Shoreline Community College when he was interrogated by police officers, and later an agent from Homeland Security.

Seattle residents will understand that the Ballard Locks are among Seattle’s most popular tourist destinations, and are among its most photographed landmarks. Thus, a person with a camera taking pictures at the Locks is nothing very special. It appears from the police report, however, that someone living nearby called in a “suspicious person” incident to the Seattle police.

It gets worse:

I then saw a Seattle Police patrol vehicle driving on a nearby path, one that was inaccessible to the public, and parking in the hilltop parking lot. At that point, I knew what was coming. A few minutes later, I watched in dismay as eight men descended from the parking lot, down the hill, making a bee-line for me and my tripod.

One of the Seattle policemen, using his strongest, most authoritative voice, gripping his holstered sidearm, was now demanding to see my ID. I asked what this was about and why I had to show him my ID. “Look, we can do this one of two ways. You show me your ID right now! I’m not kidding!” the cop yelled.

The story goes on to include Homeland Security agents taking charge of the situation:

He went on to tell me that the minute I’d photographed federal property, citing the Ballard Locks, the train bridge, and the Patriot Act, that I’d, again, broken the law. Of course, I asked why there weren’t any signs on that parcel of public property disclosing that photography was forbidden….I knew something he didn’t know. I went on to clarify that I’d actually been to the Ballard Locks just two days earlier, where I’d met with the park ranger, specifically requesting permission to take a series of photos. We’d had a genuinely pleasant discussion about photography and the freedom of speech. In the end, he’d clarified that I had permission to take photos, just about any photos I’d like, on the city side of the Locks… which was the side I was currently on.

Spiers not only didn’t commit any crime or break a rule, he had permission beforehand! Despite this, EIGHT police, Locks security, and Homeland Security agents needed to investigate…why?

The “why” of incidents like this is important, and needs discussion. It would be easy to trivialize incidents like this, since nobody was arrested. The police and Homeland Security will undoubtedly claim that no harm was done. But I doubt Spiers would agree.

Are we investigating amateur photographers at public landmarks because there is a real security threat? Possibly, but if that’s the case, shouldn’t we consider whether there is a better way to handle it? And if we’re concerned about information leaking to terrorists, shouldn’t we be concerned with all sources of information? Perhaps we should be concerned that Googling “Ballard Locks bridge photo” returns as the first link SeattlePhotographs.com, a provider of stock photography including 5 detailed photographs of the train bridge and 18 photographs of the locks and lock mechanisms themselves? Try it yourself.

The tradeoff between civil liberties and security is a difficult one. Do we need to curtail certain civil liberties (or worse, civil rights), in order to be secure? This question is being debated by the best legal minds of our generation, with no consensus. I strongly doubt it, but I don’t pretend to have the answer.

But I do know one thing.

It’s not worth giving up freedom for just an appearance of security.

Read Ian Spiers’ story, and then pass it along to your Congressperson. Especially if your Congressperson voted on Thursday to keep the Patriot Act intact.