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Is It Better to Jail Innocents or Let Terrorists Go Free? Books

The cover jacket of "The Rights of the People: How Our Search for Safety Invades Our Liberties" by Pulitzer Prize winner David K. Shipler. Source: Random House via Bloomberg

Patiently and at length, David K. Shipler documents the crumbling of American freedoms in “The Rights of the People: How Our Search for Safety Invades Our Liberties.”

Not that Americans seem to care that much. Two widespread fears -- of crime and of terrorism -- have led us willingly (if Congressional votes are any indicator) to give up freedoms protected by the Bill of Rights.

Shipler accompanies a Washington, D.C., police patrol in search of illegal guns to show how the city’s black underclass has forfeited its Fourth Amendment protection from unreasonable search and seizure.

He liked the cops he rode around with. But when he saw young men docilely submitting to (mostly fruitless) searches they had the right to refuse, he recognized the world that Justice William O. Douglas had foreseen in a 1968 dissent:

“If the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him at their discretion, we enter a new regime.”

In the hunt for terrorists, Shipler points out, intelligence isn’t a sure thing: “If the world’s major intelligence agencies” could blunder so badly about Saddam Hussein’s arsenal, “then how can mid-level operatives reliably conclude that someone is a terrorist?”

Mistaken Identity

They can’t, and he has assembled the horror stories to prove it -- like the case of Brandon Mayfield, the innocent Oregonian who was linked by inept FBI lab work to the 2004 Madrid train bombings.

Unfortunately for Mayfield, not only was he Muslim; he had once taken flying lessons and his 12-year-old daughter had researched Spain on the family computer. As a result, he was jailed for mass murder and faced the very real prospect of execution -- until the Spanish authorities, who had never swallowed the FBI’s case against him, managed to track down the real culprits.

The Constitution is clear, Shipler argues: “Our system is founded on the premise that it is far worse to convict wrongly than to fail to convict at all.”

Shipler isn’t cavalier about the threats we face (though he’s skeptical about the seriousness of most of the “conspiracies” that massive surveillance has turned up). “Aggressive investigation,” he concedes, “is legitimate and necessary.”

The Framers

That it’s also prone to error is something the framers foresaw, which is why they left us “a set of guarantees that protect our rights and simultaneously provide the best possible accuracy in criminal justice ... Observing the rights leads to reliability in the process.”

I wish I could share his confidence that the “virus” of “unconstitutional expedience” will eventually succumb to “the country’s self-correcting immune system,” as it has repeatedly in the past, starting with the negative reaction to the Alien and Sedition Acts of 1798 -- a factor in the election of 1800, which gave Thomas Jefferson the presidency.

Shipler by no means lays all the blame for the current erosion of the Bill of Rights on the George W. Bush administration (though he does liken it more than once to the Soviet leadership of the 1970s). He writes with asperity of President Barack Obama and the Democrats, noting that the 2001 Patriot Act sailed through the Senate with one dissenting vote. And he scoffs at the “sophistry” of the Supreme Court, going back for decades, as “a curse on the Bill of Rights.”

Though Shipler is an undisguised liberal, I suspect his arguments will speak to anyone with a drop of libertarian blood -- which is to say, most Americans. His book is timely, eloquent, solid, fair-minded and, on almost every page, upsetting. I wish I could add “witty” and “scintillating” to that list, but “important” will have to do.

“The Rights of the People” is from Knopf (366 pages, $26.95). To buy this book in North America, click here.

(Craig Seligman is a critic for Muse, the arts and leisure section of Bloomberg News. The opinions expressed are his own.)

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