Shipler doesn’t mince words or shy away from the hard issues. The first two chapters, titled “Torture and Torment” and “Confessing Falsely,” focus on the mistreatment of suspected terrorists and people suspected of ordinary crimes. Subsequent chapters take up the inadequate legal representation of people accused of crimes, the broad discretion of prosecutors, the mistreatment of noncitizens, the declining rights to be silent and to speak, the monitoring and undermining of street demonstrations, and the diminishing speech rights of students. An earlier, companion volume by Shipler, The Rights of the People, focuses on withering privacy rights and intrusive searches.
Shipler addresses each issue with concrete, well-documented facts and examples, and attention to the background and history of the various abuses and rights. The writing is precise, interesting, and frequently moving.
For example, on false confessions, Shipler documents their disturbing frequency and the police practices that prompt them. Then he tackles the difficult question of why people confess although they are innocent, which underlies widespread skepticism that false confessions occur at all.
On the appearance of a suspect as unemotional or calm, so often taken as evidence of guilt by police, the public, and prime-time TV, Shipler quotes an expert in the field: “Psychologists who study reactions to trauma know that some people fly into a state of hysteria, but other people shut down, go numb, and appear emotionless. That doesn’t make them killers.”
My one criticism worth noting should not deter anyone from reading this book. I would have liked to see more attention to what the Supreme Court has done to our rights since the shift in the mid-1970s to a more or less conservative court. The decline of the rights Shipler treasures started long before 9/11, and he sometimes lets the high court off the hook too easily.
In the concluding chapter, Shipler criticizes the conservative high court and bemoans the decline of our rights and “constitutional culture.” He attributes this in large part to “the Supreme Court’s rulings not fully permeat[ing] the culture, because they are being ignored by officials who should know better.” However, the problem is that the Supreme Court’s rulings are being followed and have permeated the culture, but they no longer protect the rights that Shipler — and most Americans — hold dear. A very conservative notion of our rights now dominates the judiciary and has taken hold in the culture.
In any event, Shipler is right about our post-9/11 neglect of our rights. What disappoints me most is how quickly and easily we abandoned the traditional rights that are at the core of American society and culture, as well as the Constitution.
After 9/11, most everyone wanted to pitch in and help. President George W. Bush said we could all help by donating blood, money, and our constitutional rights. Without even a serious debate, we said yes to all three.
After many decades of insisting on the world stage that countries beset by civil war or with an enemy country’s army poised on their border still can’t hold people without charges or torture them, we did just that. We faced no enemy army or country, but a renegade band of terrorists armed with box cutters and flight-school training, who managed to turn our technology on itself. What they did was horrible, and some security measures were surely justified, but the wholesale surrender of many of our most important rights was unnecessary — and accomplished with hardly a murmur.
Shipler’s coverage, concreteness, and willingness to candidly take on a range of issues make this a terrific book for anyone interested in our rights and liberties, not just for those already convinced that things have gone awry.
David Kairys, a law professor at Temple University and a leading civil rights lawyer, is the author of “Philadelphia Freedom, Memoir of a Civil Rights Lawyer.”