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Noncooperation and Resistance
Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right.
Henry David Thoreau, “On Civil Disobedience.”
In recent days, police state plans have gone into overdrive. On the other hand, signs of resistance are also visible. By this I don’t mean marches and rallies and putting soft pressure on elected representatives. These seem to me mostly a waste of time and even counterproductive to the extent that the illusion is created that some opposing force is being exerted when all that is happening is participation in the overall legitimacy of regime aims. Rather, I mean the first stirrings of organized resistance by some professionals and functionaries who have a say in whether or not the government’s totalitarian plans, in any number of areas of ordinary life, can be implemented. Organized resistance to smallpox vaccinations could become a leading front in the model of nonviolent noncooperation that I have in mind, but leaders of professional bodies will have to show far more spine in standing up to the onslaught on privacy and freedom to make larger things possible. I don’t think for a moment that noncooperation of the sort I have in mind can become a reality, in the hands of coddled liberal leaders who surely don’t want to rock the boat beyond the mild complaining their followers expect of them, but I propose this as an approach that might have a chance of working. And even the window of opportunity for noncooperation is rapidly shutting down: after the next terror attack, when the military will be on the streets, and the population brutally terrorized into abject submission, we can say goodbye to even this fond last hope.
In Democracy and Disobedience, Peter Singer has offered a persuasive model for evaluating the degree of absoluteness demanded by political obligation:
Writers on political obligation used to put the question with which they were concerned as: “Why ought I to obey the law?” Now the tendency is to ask, rather, “When ought I to obey the law?” Since the Nuremberg trials, and the events which gave rise to these trials, we have become acutely aware that the obligation to obey the law does not apply to all laws in all circumstances. There is now no need to discuss whether it is ever right for a citizen to break a law of his society. We have even, I think, got beyond arguing whether it is ever right to break the law in a democracy. Could anyone plausibly maintain that if the Nazis had received majorities in free elections, and allowed freedom of speech, association, and so on, this would have made it right to obey laws designed to exterminate Jews?
Clearly, political obligation is never absolute. When and how to test the state’s enforcement of laws that the agent finds immoral falls under the subject of disobedience Singer explores. Singer is not so much concerned with disobedience of laws that might be considered invalid or unconstitutional should they be examined by the highest legal authorities (such as the pre-1960s segregation laws in the South), but with “acts which are violations of laws, the legal validity of which is unchallenged.” This is the kind of disobedience I’m thinking of too when examining what to do about the immoral laws passed by the present regime.
The Nazi regime succeeded in realizing its worst crimes because of the extent to which the conscience of the functionary or administrator, who saw himself as simply “following laws,” was muted. The Nuremberg Laws of 1935 legalized discrimination against Jews, so that other nations clearly recognized them as part of German law. In Eichmann in Jerusalem, Hannah Arendt points out that there is a distinction to be made between discrimination, expulsion, and genocide. She wants to emphasize the distinctive nature of Hitler’s Final Solution, which elevated it to the level of crimes against humanity. While she is right to point out the qualitatively distinct nature of crimes involved at various stages of Nazi totalitarianism, it is also true that initial legal discrimination can easily lead to crimes of an altogether more brutal nature. Arendt’s claim is that modern jurisprudence is at a loss in dealing with crimes against humanity perpetrated with the backing of the concepts of “acts of state” and acts “on superior orders.” Arendt felt that it was not an excess of ideology on Eichmann’s part that led him to commit his crimes, but a shortfall of thought. She describes Eichmann’s banality in terms of “his inability ever to look at anything from the other fellow’s point of view,” and his being “genuinely incapable of uttering a single sentence that was not a clich?.” Eichmann was remote from reality, unable to feel the gravity of what he was doing, in the same way that the leaders and functionaries of this administration are. They are simply incapable of empathy, which as Arendt points out can cause more destruction than “all the evil instincts taken together.”
Should Eichmann have disobeyed his superiors? Arendt says about the Israeli court’s line of argument in the Eichmann case that “we are forced to conclude that Eichmann acted fully within the framework of the kind of judgment required of him: he acted in accordance with the rule, examined the order issued to him for its ‘manifest’ legality, namely regularity; he did not have to fall back upon his ‘conscience,’ since he was not one of those who were unfamiliar with the laws of his country.” Clearly, this is an unsatisfactory resolution. Arendt takes issue with the practice of the courts in admitting “superior orders” as extenuating circumstances. Are followers of superior orders relieved of moral responsibility in all cases? Obviously not, even in the case of apparently legal orders.
In “Civil Disobedience,” Thoreau wondered if obeying the law cannot be taken to excess:
A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power?
The regime today is asking the mass of men, in Thoreau’s terms, to serve the state not as men but as machines, with bodies. The illusion may exist that by following immoral laws we’re proving ourselves good citizens, but the question Thoreau poses–How may we serve the state with conscience?–assumes urgency as perhaps never before in American history. Thoreau refused to be associated with a government that tyrannized a sixth of its people as slaves. Although it may not be a citizen’s duty to “devote himself to the eradication of any, even the most enormous, wrong,” at the very least he must “wash his hands of it” and not “give it practically his support.” Thoreau poses the question: “Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” If the government refuses to hear our petition, then what are we supposed to do? Thoreau talks about the prison as the only place in his time for a just man. He refused to pay the poll-tax; what are our comparative obligations in this grave time, when individual freedoms are being destroyed as never before? Contradicting Garrison, Thoreau flatly holds that “all men recognize the right of revolution.” Thoreau argues that individual noncooperation with the state is “the definition of a peaceable revolution, if any such is possible.” Not one-sixth of the population, but this time the entire population is being asked to comply in their own reduction to subjects without rights. How much greater a challenge is posed by the unprecedented destruction of our liberties to our conscience as citizens?
To put this question in perspective, let’s look at some new developments. These should remove any doubts about the nature of the peril, should there still be any. The Center for Public Integrity (www.publicintegrity.org) has obtained a secret draft of new Justice Department legislation called the Domestic Security Enhancement Act of 2003, dubbed the Patriot Act II, which has been making the rounds of Capitol Hill since at least early January. In a special report by Charles Lewis and Adam Mayle, the Center explains that the proposed legislation would further erode the ability to obtain information on terrorists in detention through FOIA requests, create a DNA database on suspected terrorists, terminate all state law enforcement consent decrees before September 11, 2001 that limit the agencies’ power to gather information about individuals and organizations, create a statute for pretrial detention without bail for those suspected of terrorist activity, and strip American citizens of their citizenship and expatriate them should it be inferred from their conduct that they have terrorist affiliation. The lines between domestic and international terrorism are being completely erased. Terrorism, of course, is most expansively defined by Ashcroft’s Justice Department, and technically speaking, all sorts of normal political activity may now be construed as terroristic. Clearly, when liberals didn’t protest the Patriot Act, the follow-up was bound to occur and be more extreme. We’re on a path to complete annihilation of traditional American liberties, toward a totalitarian state where no one can feel free and alone for a moment. This kind of assault on our freedoms has to be met with noncooperation from all sorts of professional organizations charged with executing the immoral laws.
The categorization of American citizens as “enemy combatants” has also not met with enough organized resistance from lawyers’ bodies and legal scholars. Donna R. Newman (working with Andrew G. Patel) is a court-appointed lawyer for Jose Padilla, who was spirited away from his prison cell in New York and taken to a naval brig in Charleston, S.C., last June according to Bush’s orders. Padilla is being held indefinitely, without charge. Newman’s letters to him are no longer being delivered. The New York Times reports that when Newman filed the habeas petition seeking Padilla’s release, she was told that it was invalid because her client hadn’t signed it. Newman asks, “If someone in this country can disappear based on a suspicion, without any real evidence, if someone can be held incommunicado and denied access to a lawyer, what is to keep us from becoming like Argentina during the military dictatorship?” She talks about the absolute lack of evidence against Padilla: “Mr. Padilla was arrested when he deplaned from a commercial airliner for which he had a valid ticket. He was carrying a valid U.S. passport. He was not carrying a weapon. There were no plans in his possession to carry out either an attack or material to do so.”
Newman is something of an exception to the rule when it comes to the legal community’s response to the gutting of the Bill of Rights. She asks: “If the government gets away with this, it can, with these rules, lock up any American citizen as an enemy combatant simply based on secret evidence. It can deny them access to a lawyer and hold them incommunicado indefinitely. I never felt this kind of fear before, fear for our country, fear for what is happening to our Constitution. People don’t react because they believe it won’t touch them. But by the time it does touch them, it will be too late.” In December, Judge Michael Mukasey, of Federal District Court in Manhattan, ordered the government to let Padilla meet with his lawyers. The administration claims that letting lawyers speak with him would compromise his interrogation: such logic can be applied to any of us if imprisoned by the government.
The Sixth Amendment clearly states that “in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” The American Bar Association did come out forcefully against the classification of “enemy combatants” last summer, but since then the lawyers’ protests seem to have become more muted. Moreover, beyond issuing statements and reports condemning the evisceration of the Bill of Rights, what form can noncooperation by the legal community take? There should have been a louder uproar over this, but it hasn’t been heard. If liberals are afraid to be tarred with the label of being unpatriotic should they raise questions, if all of us have been cowed so deeply by the never-ending, ever-elusive threat of terror that we can’t protest when we’re reduced to the status of slaves, utterly at the mercy of the government’s police powers, then we don’t deserve the freedoms we used to have, and the American republic can be said to be fully and finally at an end. It’s frightening to speak to ordinary people around the country and realize the extent to which they buy lock, stock and barrel the official version of why we need to sacrifice our liberties; but surely, one expects better of leading intellectuals and professionals. They know better, but are choosing to be silent out of fear for their own safety, the continuance of their old ways of life.
The future looks unimaginably grim, because we continue to obey, because very few have yet said that we simply cannot accept this illegality. What will happen to law-abiding citizens engaged in political activity, environmentalists and anti-capitalists, if the experience of Enaam M. Arnaout, the director of Benevolence International Foundation, is any guide? Tagged with helping Al-Qaeda, Arnaout has just accepted a plea bargain admitting that he funneled donations to Bosnian and Chechnyan fighters to pay for boots, tents, uniforms, and an ambulance in the early nineties. But charges against him alleging that he financed terrorism were dropped. He is known to have worked with Afghan fighters in the 1980s. So essentially he was one of our own guys, supporting Afghanistan, Bosnia, and Chechnya when it was our policy to do so, or look the other way, when these causes were being financed by America.
Now consider FBI Director Robert Mueller’s recent statement that hundreds of Islamic terrorists with links to Al-Qaeda are in the U.S., ready to carry out terrorist attacks at any moment (originally, the FBI had conjured up a figure of 5,000 Al-Qaeda operatives in the U.S., an estimate from which it has backed off). Think also of the report in the New York Times of January 27 that the FBI is ordering field supervisors to count the number of mosques and Muslims in their areas, presumably to establish quotas for investigations. Investigative goals, and compensation and reward for prosecutions accordingly, will be based on these numbers. A Congressional aide says that “if the numbers don’t compute, that will trigger an automatic inspection from headquarters to figure out why they aren’t living up to that.” The ACLU compares this policy to a precursor of the internment of Japanese-Americans, when there was an order to compile ethnic census information during World War II. Now consider too the remarks of Representative Howard Coble, Republican of North Carolina and chairman of the House subcommittee overseeing domestic security, that President Roosevelt’s internment of Japanese-Americans “was appropriate at the time” because “we were at war” (as we are supposed to be now, of course). Representative Coble argues that for Japanese-Americans, because they were an “endangered species” during the war, it “wasn’t safe for them to be on the street.” No doubt, Arabs, Muslims, and South Asians can similarly be herded into camps for their own protection now–and for preemptive action against terrorism, which can crop up anywhere, anytime, for no rhyme or reason.
One would think that South Asian, Arab, Muslim, and immigrants’ rights associations would have come out in mass force to announce noncooperation with every stage of the government’s planned terror campaign against people here. Since American citizenship was some sort of a barrier to persecution, now the Justice Department is planning to strip people of their citizenship should they stand accused! But what we see are civil liberties and immigrants’ rights groups announcing basic cooperation with such departures from American legal norms as the registration program for so-called visitors. If we have obeyed their illegal laws to this point, what is in store for us when a dirty bomb conveniently explodes in a major American city? Will we still cooperate in the wake of the new measures announced after such an orchestrated catastrophe? (The effects of a chemical or radiological attack in terms of actual harm to humans would be fairly limited, but the consequences in terms of giving the government more of the authoritarian power it wants could be colossal.)
There is a model for resistance, although it has not been formulated in broad enough terms. Hundreds of hospitals and thousands of nurses across the country are refusing to participate in the smallpox vaccination plan, beginning with the vaccination of 500,000 healthcare workers. This plan is absurdly impractical and bound to recreate the disease when it had ceased to exist (the last known case in the U.S. was in 1949, and only the U.S. and Russia are known to have stocks of the smallpox virus). It’s simply not possible to keep the vaccinated area of the body protected enough so that those who haven’t been vaccinated don’t get infected by the virus. Pregnant women, children under twelve months, those with weakened immune systems, and those with skin diseases can’t be vaccinated in the first place. So what will happen to vulnerable parts of the population?
The New York Times reports on February 5 that Elizabeth Fenn, a history professor at Duke, says that “given the media attention” she would have expected more people to be “eager” to get vaccinated. Joining her in this sentiment is Dr. William J. Bicknell, smallpox expert at Boston University’s School of Public Health, who wants 10 million people to be vaccinated as quickly as possible, and blames the Centers for Disease Control and Prevention for exaggerating fears about vaccination. For him, the Israeli and U.S. military vaccination campaigns are the models for the rest of us citizens. These are the collaborators.
On the other hand, Dr. Paul Offit, chief of infectious diseases at Children’s Hospital of Philadelphia and member of the president’s advisory panel on smallpox vaccination, says that “people are voting with their arms.” He is the only member of the advisory panel to have voted against vaccination. Patrick M. Libbey, director of the National Association of City and County Health Officials, says that smallpox vaccination is “not like lining people up for flu shots at the mall.” Claire Jordan is director of the Texas Nurses Association, which has advised its 5,000 members not to volunteer for vaccination. According to the New York Times, nurses unions in California, Massachusetts, Rhode Island and parts of Pennsylvania have also asked members not to volunteer. Linda Condon-McMahon, an emergency-room nurse at Brockton Hospital in Massachusetts, is quoted as saying that “there’s problems with protecting my family, and patients till the site scabs over. Slapping a little bandage on it isn’t going to protect them–somebody trips and falls, grabs your arm, and there goes your bandage.”
Also deserving laudatory mention is St. Vincent Infirmary Medical Center in Little Rock, Arkansas. Hospital chains like Providence Health Systems in Washington have also refused to cooperate, as has the Virginia Commonwealth University Health System, which has said that it will not vaccinate until a confirmed case of smallpox appears in the world. Dr. Richard Wenzel, the system’s head of internal medicine, who decades ago treated smallpox in Bangladesh, calls the decision of the Virginia Commonwealth UHS “purely a medical risk-benefit assessment.”
These doctors and nurses are the icons standing out against the new American fascist age, if any deserve to be called such. They have chosen common-sense over exaggerated fears. But the outcry amongst health care professionals needs to be far louder for it to register. Why isn’t the American Medical Association protesting mass vaccinations? Why haven’t gay rights groups advocated noncooperation? What happens to those who are HIV positive? Perhaps the leaders of gay rights organizations have been co-opted by the fascist state too, and their noise is only to be heard when it’s safe to do so? The ACT UP site doesn’t seem to say anything about vaccinations. The UCLA School of Public Health’s Department of Epidemiology runs on its site Charles Krauthammer’s essay arguing that smallpox shots must be made mandatory for everyone, and “individuals must submit” to the state.
Each of the assaults on our freedoms is a test run, to see how we will react. As long as we cooperate and obey, they will ratchet up the repression to the next higher level, and so on ad infinitum. At the end of it, we will start living in an unbelievable nightmare state. In the Moussaoui case, although Judge Leonie Brinkema granted his request that his lawyers be allowed to question Ramzi bin al-Shibh, suspected Al-Qaeda member, the government is balking and wants to shift the case to a military tribunal. Mr. Moussaoui’s lawyers have the right to question this key witness, since he may offer evidence favorable to their client. The latest on the Moussaoui case is that Judge Brinkema has indefinitely postponed the trial while the appellate process runs its course. Bin al-Shibh, if allowed defense access, might blurt out coded messages for new terror attacks, is what the government argues. On the other hand, Bin Laden’s new tape was broadcast when convenient for the regime this time, although he may have been preparing his followers for new attacks (says George Tenet, CIA director). A nation of children is being led the only way it seems to merit.
In addition to the usual terror alerts, will we be subject to warnings by a new national system of environmental monitors that will supposedly tell within 24 hours if anthrax, smallpox or other germs have been released in the air? The new Bio-Watch system is only the first among a series of terrorizing tactics the DHS is cooking up. False positives–wrong identifications of germ releases–are common with such devices, as even common-sense should tell us. Where are the bureaucrats and administrators saying that they will not cooperate with implementing this terrorizing device, subject to political abuse?
Are we obliged to cooperate in the total destruction of privacy, in humiliating interrogations and searches at all points of ordinary exchange and transaction? Immigration officials are moving quickly to implement ID cards encrypted with digital photos, signatures, biographical information and fingerprints, to use at 100 entry points. Each card has a 1.4-inch metallic strip, holding digitized information like a CD. The New York Times reports that “the cards hold 10,000 times the information on a common magnetic strip on most credit cards.” Expect these biometric-based identity cards to become common for all of us, despite the fact that false positives are a common occurrence with these cards as well.
There has been altogether too much exuberance recently about congressional interest in oversight of John Poindexter’s Total Information Awareness program, at the Pentagon’s Darpa. To read the news accounts lately, it would seem that the program is dead. In truth, only curbs have been placed on the project. The Defense Department can still submit a report about the program, including costs and benefits, and impact on civil liberties, within 60 days of the enactment of a package of amendments to an omnibus spending bill. Also, if the president certifies to Congress that submission of such a report or halting the program would endanger national security, the TIA program could go ahead. To be used in this country, Congress would have to pass legislation authorizing it to do so (a dirty bomb should take care of that, or perhaps more germ attacks against recalcitrant Senators?). Congress is only demanding appropriate consultation. It doesn’t have a problem with deploying this program overseas. Congress only wants to review this program before funding it.
The primary purpose of the New York Review of Books, The Nation, and the rest of the liberal journals these days seems to be to calm people down, pacify us into thinking that we’re nowhere near the dangerous state, the point of no return, that we actually are. Not once has the so-called left-liberal Nation argued for anything resembling a protest strategy that might actually work: they want us to keep writing letters to representatives, call the White House and fax and email them, and show up dutifully for marches. Is Katrina vanden Heuvel relying on votes to be counted fairly in the next election? The editors and writers of these publications are collaborators against the cause of American freedom, because they are participating in the essential narrative used to justify the new postmodern form of governance: governance by terror, governance by total surveillance, governance by threat of the kind of pervasive censure and punishment that heretofore authoritarian governments have only dreamed of having the capacity to pursue. Bush happened at the right time, inevitably so, because the elites had had enough of the beginnings of mild resistance against the last decade of neoliberalism, and the decision was made by the establishment to put a harder front on the repression. Clinton set the stage for it, softened us up for eight years, with consistent erosion of freedoms, and Bush was brought in to finish the job. The idea is to emerge at the end of this with a complete strategy for totalitarian management of the population in the new phase of capitalism.
Now, let’s ask the question again: What is the citizen’s political obligation when faced with this kind of regime? What form of protest is suitable? Will ordinary protest, along with full obedience, do this time? What form of disobedience of immoral laws–immoral because they strip us of our essential human dignity and self-respect–is demanded when confronted by a revolutionary, terrorizing regime? Note that when you read the liberal papers, there is no sense–even when abominations like enemy combatants or the Patriot Act and its follow-ups are being discussed–that we have entered a new era. The essential validity of full obedience, with reliance only on electoral politics, is preserved without stint. It makes it impossible to even pose the question of what sorts of strategies might be considered: the reliance is on mythicized tactics, from the sixties and so on, and not really even those tactics, but modified, sanitized versions of them for Generation X and Y.
This is a new kind of war. It is a never-ending war. We can never say when we have won. We can only say when we should be more afraid, but we can’t say what the exact nature of the threat is. But we want you to go about your business. Just be vigilant, watch out for suspicious activity, do your duty as citizens. Don’t question the government. We’re here to protect you. A terror attack worse than the last one is bound to happen, sooner or later. We must hunt down the killers one by one. This could take decades. If we look into any and all areas of your life, it is to protect you. Give us your freedom, all of it, and we will keep you safe.
This is Kafka aligned with Orwell, a postmodern dream for the new Goebbels and Himmlers, a logical cul-de-sac, a circular argument that all of modern American liberalism’s paranoias about personal safety and hygiene have validated in intellectual terms. Thirty-five years of dumbing down, declining intellectual standards, and privatization of citizenship have set the stage for Americans willingly, obediently giving up their freedoms, like sheep quietly being led to the slaughter. The population obediently prepares for terrorist attacks, planned and executed by their own government, by buying duct tape and plastic sheeting. Bin Laden is the phantom–and there will be others–who can be conjured up at any moment (a convenient audio-tape here and there, right when the public needs to be brought back in line): governance by fear, is what this amounts to. And fear of a kind that can never be localized, and ultimately never resolved. FEMA has posted at its site a primer on “national security emergencies” (terrorism) for children, as part of the national effort to ingrain irrational fear at every age level, as during the Cold War. A White House staff member tells the New York Times, about being “sniffed and prodded” and seeing “guys walking around with guns,” that “after 9/11 . . .we, in a way, are all Israelis now.” Interviews with detainees will remain a perpetual source of terror alerts, even if they haven’t been in touch with the outside world for months.
While literally millions have come out to protest war against Iraq, there have been no marches and demonstrations to call for the dismantling of the Patriot Act and the Department of Homeland Security, and to raise alarm about the evisceration of the Bill of Rights. What does it tell us about the psychology of the white liberal when he can come out in such force against foreign adventurism, but can’t imagine holding a rally (not that that works, but this is only to compare the level of outrage mustered up on the liberals’ own terms) against de facto martial law in our own country? These anti-war protests seem to me a way of conveniently shedding white guilt (after all, we prosper from the power and reach of the empire, by having a standard of living we would otherwise probably not be able to sustain), while being oblivious to the loss of freedoms right at home. After all, no speaker at the marches is asking citizens of Western democracies to make any real lifestyle changes (such as reducing absurdly high levels of consumption), or even to put ourselves physically on the line, make some sacrifices to stop domestic repression.
Like the anti-globalization marches, the anti-war protests have become part of postmodern spectacle, a subset of harmless entertainment for guilty whites, which let us go home feeling that we have accomplished something. The New York Times reports on February 16 about the San Francisco march that Mike Lamson, an Almeda, California resident, was worried on his way to the peace rally about terrorism on the subway as it passed a tunnel beneath the San Francisco Bay. Lamson is anxious about a war against Iraq because it might inflame terrorist acts here. This is the modern protestor: so afraid of being afraid that he will leave no march unattended.
This essay is a call to all who are in any position to alter the shape of events to refuse to cooperate in the only way that lets us go out with dignity: it still won’t work, probably, but at least we will have tried.
Where are more local jurisdictions refusing to cooperate with the federal government’s imposition of unconstitutional surveillance technologies and methods?
As many as ninety cities–big ones like Chicago and Philadelphia, and small ones like Ann Arbor, Michigan, and Berkeley, California– have voiced their disapproval of the war against Iraq, but where is their declaration of active noncooperation with domestic police state tactics? The Institute for Policy Studies, under Karen Dolan, is organizing anti-war resolutions, which are pending in 100 more towns and cities. What if these cities were to show the same enthusiasm against enforcement of the Patriot Act? Chicago alderman Joe Moore says that “few decisions will have a more profound effect on the quality of life in our cities than the decision to go to war.” What about the immeasurably more direct effects on the poor and vulnerable of suspending the Constitution? Why aren’t city council members, mayors, and people with influence in local communities vowing noncooperation?
The resolutions passed by a number of cities–including Cambridge, Northampton, and Amherst in Massachusetts–against the Patriot Act appear to be without teeth, because local governments have no authority to compel federal law enforcement to comply. Cambridge Councilman Brian Murphy has said that “one of the recognitions is that there is a supremacy act and that there are limits to what a city can do,” adding that “if the FBI chooses to take actions in Cambridge, they’re able to do that under the law as it is constituted.”
The Bill of Rights Defense Committee reports forty cities having passed resolutions defending civil liberties, with Cambridge’s perhaps a model resolution. Building on its 1985 resolution establishing itself as a sanctuary city for refugees, the new City Council resolution declares the city of Cambridge’s policy to be to request that:
“Local law enforcement continue to preserve residents’ freedom of speech, religion, assembly, and privacy; rights to counsel and due process in judicial proceedings; and protection from unreasonable searches and seizures even if requested or authorized to infringe upon these rights by federal law enforcement acting under new powers granted by the USA PATRIOT Act or orders of the federal Executive Branch;
The City Manager inform federal and state law enforcement officials acting within the city of our desire that they not engage in or permit detentions without charges or racial profiling in law enforcement; further that the Cambridge Police department not engage in racial profiling or detention without charges; and
The Local U.S. Attorney’s office, the Office of the Federal Bureau of Investigation, Massachusetts State Police, and local law enforcement authorities and city departments report to the Cambridge Human Rights Commission regularly and publicly the extent to and manner in which they have acted under the USA PATRIOT Act and new Executive orders, including disclosing the names of any detainees held in eastern Massachusetts or any Cambridge residents detained elsewhere.”
It seems that Cambridge is walking a fine line here: on the one hand, Councilman Murphy says that federal law takes supremacy, and on the other hand the City Council Resolution instructs City employees, to the extent legally possible, not to cooperate with specific requests by federal law enforcement acting under the Patriot Act.
What would be ways of making such cities active sanctuaries against unconstitutional action by federal authorities? How might such cities take a more forceful stand against the federal government’s unconstitutional legislation?
* Where are the local police jurisdictions vowing noncooperation with spying?
* Where are the unions of government employees, declaring noncooperation with the policy of privatization and reducing the ability of government employees to take a stand against violations of human rights norms? What if the AFGE, AFSCME, APWU, NALC, and NTEU made suspension of constitutional rights an issue?
* Where are the booksellers’ and librarians’ associations, refusing to cooperate with surveillance methods under the Patriot Act? A few brave souls will have to risk arrest and prosecution for noncompliance with spying on patrons’ reading habits. The American Booksellers Association has not declared anything like noncooperation with snooping on book buyers’ reading habits. The American Library Association’s Intellectual Freedom Committee has written “Privacy: An Interpretation of the Library Bill of Rights,” which was adopted by the ALA Council on June 19, 2002, as a response to the Patriot Act. But this document merely enumerates readers’ constitutional rights to privacy, without saying anything about the direct contradiction of First and Fourth amendment rights embodied in the Patriot Act. It is a meaningless document.
* Where are the immigrants’ rights groups, declaring noncooperation with the ridiculous registration (not to mention change of address) requirements, which make all noncitizens technically criminals, and subject to deportation? It is not enough to beg and plead with the government to treat detained immigrants with more dignity (this is to fully comply in our degradation as non-human subjects).
* Where are the associations of higher educational institutions, to protest the computerized plan tracking the activities of foreign students?
About the loathsome Sevis, or Student and Exchange Visitor Information System, Robert J. Locke of the University of North Carolina, tells the New York Times on February 16: “There’s no room to correct the record for errors. That’s our biggest fear in the implementation of this, that students and scholars may unwittingly fall between the cracks and become illegal.” Victor Johnson, an associate executive director at the Association of International Educators, says in the same article only that “while greater vigilance is certainly needed, this broad net is catching all kinds of people who are no danger whatsoever.” Protest will have to take the form of action: why has not a single prominent educator or intellectual come out against this fearsome new authority to harass foreign students, scholars, and researchers? At the University of Colorado, immigration officials detained and threatened to deport an Iranian student, Yashar Zendehdel, who had legally, with university approval, fallen below the minimum course load when switching majors and dropping a course. Have liberal educators become so soft and wimpy that they will not consider noncooperation when faced with innumerable cases like that of Zendehdel?
The American Association for Higher Education (AAHE), the American Association of University Professors (AAUP), the National Association of Independent Colleges and Universities (NAICU), and others should all have refused to cooperate with implementation of Sevis. The educational mission is fatally compromised when such intrusive surveillance targets particular segments of the student population. The American Council on Education’s president, David Ward, has only shown eagerness to quickly implement the Sevis system, participating in special scrutiny of targeted individuals. In a letter dated November 2, 2001 to Michael Becraft, Acting Deputy Commissioner of INS, the ACE’s Ward writes to “underscore the higher education community’s sincere commitment to working closely with you as efforts are sharpened to bring the Sevis into full operation” and to say that “our concerns with Sevis have always been focused on the administrative details, especially those related to fee collection.”
* Where is the famously rebellious, anarchic, nonconformist computer community, when the Internet is being redefined as fair game for spying?
* Where is noncompliance by airline passengers, who acquiesce in humiliating searches, reminiscent of the degrading treatment of ordinary citizens by history’s worst totalitarian states?
Paul Richmond, Seattle attorney, brought to my attention a Seattle City Council meeting to vote on a resolution in support of civil liberties after the Patriot Act. Addressing Heidi Wills, Richard Conlin, Peter Steinbrueck, Margaret Pageler, Nick Licata, Judy Nicastro, Richard McIver, Jim Compton, and Jan Drago of the Seattle City Council, Andy Stephenson writes:
“Ladies and Gentlemen of the Council, Can you please clarify Seattle’s involvement with the project [local police involvement in surveillance of political groups, using a new tool called Spawar, the Navy's space warfare project, to scan and link private information on citizens from multiple databases] mentioned in this article? Is the City of Seattle cooperating with the Justice Department to abridge my rights? I am sending this e-mail to nearly 700 Seattle residents, and 1,400 others worldwide. I will also post this to Democratic Underground with a membership of over 20,000 members, several of which are from Seattle and King County. So believe me when I say I am getting this message out. I am aware of and appreciate the anti-Patriot Act legislation soon to be offered; however, if the city is cooperating with this sort of program, I fear our city officials are merely paying lip service to the needs of the people. If the federal government will not and cannot respond to the will of the people then our local officials need to step up to the plate and defend our liberties. This “project” is an egregious invasion of privacy and a dangerous precedent . . .Seattle residents . . .bombard your elected officials with emails and phone calls. Demand they protect your civil rights! Demand an end to “Spawar” immediately! This is an affront to the Constitution and our liberties contained therein . . .Seattle, take a stand against tyranny!”
Of course, more than emailing elected officials is required. Citizens will have to figure out ways to bring such pressure on local jurisdictions that they cannot but refuse to cooperate with the federal government: City Councils cannot simply pass resolutions expressing disapproval of the Patriot Act and its follow-ups; they’ll have to find ways to opt out of such gross violations of civil liberties, putting none of their resources at the government’s disposal.
The only noble course is to articulate and practice a strategy of noncooperation, and place the onus on the government to take more extreme measures to persecute people, if it will. The course chosen so far legitimizes, the path not taken delegitimizes government immorality. In the year 2020, the world may be committed to social democratic internationalism (Europe seems to be on track) and finally have more humane economic organization. When that happens, and Bush is brought to justice before the International Criminal Court, charged with crimes against humanity and sentenced to life in prison, Americans who do not now cooperate with this regime’s genocidal aims, even if we don’t win in the short run, can hold our heads high and feel that we did the right thing morally. Otherwise, we will all be like the accomplices at the Nuremberg trials, burdened with a shame that generations won’t be enough to overcome.
ANIS SHIVANI studied economics at Harvard, and is the author of two novels, The Age of Critics and Memoirs of a Terrorist. He welcomes comments at: Anis_Shivani_ab92@post.harvard.edu