What Obama Could Learn From Paterson
Having previously congratulated Governor David Paterson for signing into law the removal from NYPD computerized databases the names and personal information of many thousands of entirely innocent New Yorkers stopped and frisked wholly without reasonable suspicion, I confess that I missed a vital part of that story.
I found it in the black weekly New York Beacon (July 22–28). I regularly read the black, Jewish, Catholic, and labor union press for perspective, and I am often rewarded. As reported by J. Zamgba Browne, what Paterson said about signing the law was a clear refutation not only of the policies of Mayor Mike Bloomberg and NYPD Commissioner Ray Kelly, but also of the Bush-Cheney-Obama insistence that national security and public safety can triumph over individual constitutional liberties.
If any civics classes still remain in Joel Klein's public school system, Paterson's warnings are especially worth hearing and discussing in the context of a 22-page July 29 ACLU report card: "Obama Administration in Danger of Establishing 'New Normal' With Worst Bush-Era Policies." In my return to the Voice, I cited some of those Obama policies not only continuing, but also expanding, the disabling of the Bill of Rights ("George W. Obama," January 12).
"In a democracy," Governor Paterson said, "there are times when safety and liberty find themselves in conflict. From the Alien and Sedition Acts [opposition to which gave Thomas Jefferson the presidency] to the Patriot Act, we have experienced moments where liberty took a back seat."
As president, Barack Obama has not done anything to make the Patriot Act more American. Indeed, when Democrats on the Judiciary Committee tried, once Obama was in the Oval Office, to enact a few reforms, the president helped the Republicans block most of them.
In Paterson's signing message, the Beacon reported, he "underscored that the new law does not prevent the use of the stop-and-frisk technique, which is legal and constitutional, [provided] the officer reasonably suspects that the person stopped has committed or is about to commit a felony or a misdemeanor as defined in the penal law."
As for the 88 percent of New Yorkers who are blocked by cops on our streets (the huge majority of them black or Latino), Paterson emphasized that every American, in or out of school, should know—even members of Congress, those who still read what they pass: "There is a principle—which is compatible with the presumption of innocence, and is deeply ingrained in our system of justice—that individuals wrongly accused of a crime should suffer neither stigma nor adverse consequences by virtue of arrest or a criminal accusation, not resulting in conviction," he said.
But until this law, masses of New Yorkers accused of nothing at all remained in Ray Kelly's computer in case—who knows?—they are somehow connected in some way to some kind of alleged crime. Warned Paterson: "It is not unreasonable that these individuals could be targeted in future investigations even though no evidence of wrongdoing was found during the initial stop that warranted further legal action."
Is this America? It defined New York City justice until Paterson frisked Bloomberg and Kelly about their knowledge of the Constitution or privacy. He found nothing. Paterson said: "Simply justice as well as common sense suggests that those questioned by police and not accused of a crime should not be subjected to perpetual suspicion." Ever hear of a prosecutor named Stalin, Mr. Mayor?
If Rudy Giuliani had somehow been elected governor, can you imagine his ever signing into law what David Paterson did on the basis of simple justice?
What Bloomberg and Kelly would have gotten away with, had it not been for Paterson, illustrated this always contemporary truth by Thomas Jefferson: "Every government degenerates when trusted to the rulers of the people. The people themselves, therefore, are its only safe depositories. And to render even them safe, their minds must be improved to a certain degree."
The much underestimated Justice David Souter understood that. When he resigned from the Supreme Court, he was apprehensive about how few Americans know what it means to be an American, or should mean, saying that the majorities can't even name the three branches of government. (Ask your friends to name the five freedoms of the First Amendment.)
How many of them know that under the "Guidelines for Domestic FBI Operations," rushed through Congress in the last month of the Bush administration—and not in the least objected to by President Obama—the FBI, like under J. Edgar Hoover, can start a "threat assessment" (an investigation) of anybody without having to go to a judge and, as has been the case in this city's stop-and-frisk operation, without any reasonable suspicion?
"We need," Souter says, "the restoration of the self-identity of the American people." Otherwise, what safeguards individual freedoms from government "can be lost, it is being lost, if it is not understood."
The ACLU's "Establishing A New Normal" report ends with the grim conclusion that "if the Obama administration does not affect a fundamental break with Bush administration policies," it will "create a lasting legal architecture in support of those policies, and then it will have ratified rather than rejected the dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever."
As Paterson put it on the day of the signing: "Today, we have an opportunity to set the scales of safety and liberty in balance before we lose something we cannot get back."
At stake is not only an Obama break with the Bush-Cheney "dark side" here and abroad, but enough understanding among Americans that this current president has consistently and insistently maintained that he has the power to indefinitely imprison a terrorism suspect who cannot be brought before a military commission or into one of our federal courts because the purported evidence against him or her can't be admitted.
Why? Because that suspect has been tortured to extract the alleged evidence.
Years ago, I was writing a profile of Justice William Brennan, which became part of my book, Living the Bill of Rights (University of California Press). I was in his chambers at the Supreme Court, and was unusually somber.
"How," he suddenly asked me, "can we get the Bill of Rights off the pages and into the lives of students?"
I haven't heard that question in all the raging dissonance of how to "reform" education—and end its sentencing of so many of the young to largely dead-end lives. Some real-life changes, however, are being made in a number of schools around the country that focus on the critical-thinking skills of one student at a time instead of the collective test scores of a class, or a whole school, or a state.
I don't yet know how many of these still few schools are also bringing the Constitution into students' lives so that, as they become active citizens, they'll insist on their loyalty to the Constitution rather than to whichever government is in power.
Well, David Paterson took a small step in that direction. But how much time do we have to act on Justice Hugo Black's ringing of the liberty bell: "Do not be afraid to be free!"
Meanwhile, there are more and more NYPD stop-and-frisks on paper. During the first six months of 2010: 319,156. Same period last year: 311,646. Commissioner Ray, with 8.3 million of us in this city, you're catching up fast!
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