Published by Knopf (2012)
Reviewed by Sara Aronchick Solow
David K. Shipler’s Rights at Risk offers a detailed account of the many ways in which, he says, U.S. constitutional rights have been under attack over the past thirty years. His primary areas of concern are the procedural rights of criminal defendants (i.e., freedom from torture and self-incrimination, right to counsel, treatment during the pre-trial phases), the due process protections of undocumented persons, and civil liberties. In all three areas, Shipler portrays - with an abundance of examples drawn from public records, journalistic accounts, and his own research—how our constitutional guarantees have weakened since the 1970s and particularly since 9/11. He takes us inside the stories that exemplify these problems, from well-known Supreme Court cases to more obscure episodes of torture, detention, and deportation. In the final chapter, Shipler points the finger at all of us. Everyone from politicians, to Supreme Court Justices, to the general public, is to blame for the erosion of our “constitutional culture.”
The most commendable aspect of Rights at Risk is its sheer breadth of coverage. Shipler does not simply offer statistics or cite prominent cases to prove his points; he provides dozens upon dozens of examples of the constitutional problems he explores, often drawing on his own investigative research. In his chapter on confessing falsely, for instance, Shipler describes cases of adults, adolescents, and children, from the 1980s, 90s, and present day, all of whom confessed to criminal liability but later were found to be innocent. He shows that false confessions are not anomalous events but a regular feature of our criminal justice system, and that all types of defendants are susceptible to these pressures. Similarly, in his chapter on the “unfair playing field,” Shipler demonstrates how prosecutors routinely manipulate the criminal justice system at the charging stage, plea negotiation phase, and at sentencing, through scores of examples and anecdotes. And in all of these discussions, Shipler uses his journalistic forte to bring his stories to life – he takes the reader behind the scenes, describes the human personalities involved, and reveals the human costs of constitutional breaches.
A second strength of Rights at Risk is that it traces the contamination effect the War on Terror is having on the broader U.S. criminal and civil justice systems. This is done particularly well in Chapter 5, which focuses on illegal immigrants. Shipler provides numerous examples of hard-working, non-criminal, highly sympathetic individuals – all lacking official legal status – who were detained or deported in the post-9/11 era as federal authorities turned to immigration enforcement as a strategy in the War on Terror. The “Ashcroft sweeps,” for example, which in 2001 resulted in the detention of approximately 1,200 persons of Arab and Muslim descent but no convictions for crimes of terrorism, were executed through the immigration system. The FBI collaborated with the INS to impose a “special registration” requirement on males 16 and older, who hailed from heavily Muslim countries and were not permanent residents, requiring that they appear at immigration offices and be fingerprinted. If an individual was discovered to be out of status, he was often transferred to the Metropolitan Detention Center in New York City, held without access to counsel, and questioned, sometimes for months, about the events of 9/11. This paradigm of zealous enforcement of the immigration laws as a tool in the War on Terror has repeated itself time and again in the past ten years, Shipler demonstrates. While national security is unquestionably important, Rights at Risk reminds us that it has been pursued at the expense of the most vulnerable cross-section of the population.
But Rights at Risk has shortcomings. First, the book is overly ambitious. Shipler’s project is capacious – he wants to cover seven substantive areas of constitutional law, to discuss developments from the 1970s through the present day, and to review well-known cases as well as unreported events. As a result, Rights at Risk often feels like a ship without a captain. It is neither a post-9/11 book nor a criminal justice book. It is not quite a work of journalism nor one of legal analysis. In trying to do so much, Shipler has sacrificed the benefits of a focused theme. One wonders if a more modest project would have had a stronger impact.
Second, and most important, Shipler buries the lede. His broader message comes only in the last nine pages of his book, which is surely late as the point to offer an account of why our liberties have eroded in all the many ways and instances he offers. In the final chapter of Rights at Risk, Shipler posits an explanation for the gradual erosion of U.S. constitutional rights: a deficit in our constitutional culture. Civil liberties are not a salient part of American politics, Shipler contends, because we do not punish our elected officials at the ballot box when they vote to curtail rights. The Constitution is neither a fundamental part of our educational curriculum nor of our national identity, he says. Shipler writes, “Most people have an internal voice that whispers ‘wrong’ when they do something immoral. They know instinctively that they must not cheat or steal or murder. . . . Yet too few Americans seem to hear an internal voice speaking to them on civil liberties.”
These are good points, if contentious in some ways – the Constitution not part of our national identity? - and Shipler should have explored them in greater depth. In his chapter on torture, for instance, it would have been illuminating if Shipler had not only presented examples of what he deems abusive behavior by CIA and military officials but explored the reasons for their conduct. Were these officials rogue actors who stepped far out of line, or were they part of broader agencies that condoned such behavior? And if the latter, what evidence does Shipler have that things have gotten worse, as opposed to better, over the past thirty years? An insightful Note published by William Levi in the Yale Law Journal in 2009 argued that except for water-boarding, every single interrogation technique authorized by the Bush Administration in the early 2000s had also been authorized before 9/11 and had been considered to fall within the legal constraints of the Geneva Conventions. In fact, Levi argues, “Several techniques (for example, sleep deprivation, and standing as a stress position) that were understood at times before 9/11 as lawful by the military for use on protected prisoners of war were more coercive by degree than the same techniques authorized for use on unlawful combatants post-9/11.” If Levi is correct, this would suggest that interrogation practices have become more protective of civil liberties in recent decades rather than less protective.
Shipler claims our constitutional culture has eroded and offers as evidence that “Americans [in 2002] did not look upon these assaults . . . as ‘torture’ under the federal law.” But perhaps that is precisely the point. Perhaps the “torture and torment” techniques Shipler describes were not blatantly unconstitutional in 2002 or somehow unprecedented. Similarly, in his chapter on the First Amendment, Shipler documents troubling speech episodes in the post-9/11 years but also admits that during other national security crises, such World War I or the Cold War, speech protections went out the window. Is the current landscape really that much worse than it was 50 or 100 years ago?
In short, if Shipler’s big idea is that constitutional protections in the United States have declined since the 1970s and particularly since 9/11, and that we have lost a precious regard for the Bill of Rights we once had, he should have spent more time weaving that narrative into each chapter and supporting it with historical contrasts. And not to ask for the moon, but it also would have been helpful to hear some recommendations on what can be done going forwards. If the public, now more than ever, is ready to trade in constitutional rights for better national security, how can we change the national mindset? Education? Better reporting by the media? Or will it take big national crises, such as Watergate, Japanese internment, or Abu Ghraib, to shake the public out of its stupor and remind Americans of the importance of constitutional safeguards? Had Shipler spent more time analyzing the historical trends he posits and proposing solutions to the problem, Rights at Risk would have catalyzed a greater conversation about the fragility of constitutional rights and how to preserve them.
(Sara Aronchick Solow is a graduate of Yale Law School and recently completed a clerkship on the Third Circuit Court of Appeals. She has a forthcoming piece in the St. John's Law Review which discusses the prosecution of extra-territorial acts of terrorism in U.S. courts.)