Depuzzle Me
An email conversation about the news of the day.
Jan. 7 2002 6:08 PM

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Dear Tony,

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I agree wholeheartedly with everything in your letter, with minor exceptions: I don't know anyone who really pines for the days when there were few or no blacks at Harvard and the undergraduates were largely pink-toned plutocrats, and I don't see the systematic use of heavy race-based preferences—discriminating against low-income Asian-Americans, among others—as the only way to avoid a return to those days. And I would not call Larry Summers a dictator for privately suggesting that one of his university's most privileged "scholars" do more scholarship and less politicking for Al Sharpton.

As to your legal question, I surely agree that it would be both unconstitutional and outrageous to prosecute a man for standing on a soapbox and shouting support for Osama Bin Laden. But I seriously doubt that President Bush intended to suggest any such plan when he said clumsily—this is not a man given to parsing with much care the meaning of words like "is," or of any other words, for that matter—that "if we find somebody who wants to harm America, who espouses a philosophy that's terrorist in bent [sic], I can assure you we will bring that person to justice." (For link to full text, click here.)

While I share your suspicion that Bush is none too sensitive to civil liberties, I read his introductory reference to "somebody who wants to harm America" (which the New York Times omitted from its article) as implying that the "someone" is not a mere soapbox orator but rather a person planning acts of terrorist violence against Americans. (By the way, although Bush's bare-bones military-trials order would theoretically allow the horror of execution-by-two-thirds-vote-without-appeal that you identify, the detailed rules that the order called for and that are now being drafted will provide some kind of appeal and require a unanimous vote for a death sentence, according to news reports.)

Indeed, I suspect that the freedom of speech is less in danger from Bush than from the student (and perhaps faculty) thugs who over the years have repeatedly shouted down, heckled, harassed, and otherwise prevented conservatives like Ward Connerly and Linda Chavez from speaking on campuses. Those episodes are not well known because newspapers like the New York Times routinely ignore them. But as Nat Hentoff (no right-winger he) reported in the Village Voice on June 12:

Over the past 12 years, I've been covering the contempt for free speech and a free press on many of the nation's campuses. Students—black, Latino, and white—steal and burn newspapers that offend them. The Student Press Law Center has cited 205 such thefts—and occasional bonfires—since it started compiling a list in 1993. Encouraging these vigilante students are many administrators and faculty members who remain silent for fear of being called racist or insensitive. This cowardly passivity even includes many members of law school faculties and professors of political science, who presumably teach the history of the Constitution.

A more serious question about the administration's prosecution plans, it seems to me, is whether it will or should take the position—in a case such as that of Marin County Talib John Walker, for one—that becoming a member of al-Qaida, all by itself, constitutes the crime of joining a conspiracy to murder Americans (that's what al-Qaida openly boasts of being, isn't it?), and thus makes all al-Qaida members worldwide guilty of every murder committed after they have joined by any other al-Qaida member (that's the Supreme Court's long-established "Pinkerton rule," isn't it?). This may seem redolent of the now-discredited prosecutions of U.S. Communist Party members for joining the worldwide Communist conspiracy. But there's a distinction: The U.S. Communist Party was not openly (or even covertly) in the business of indiscriminately mass-murdering Americans. I have been puzzling over how far the law of conspiracy can stretch to nail al-Qaida members before it runs up against the freedom of association. Can you depuzzle me?

And before I leave the subject of the celebrated female fighter pilot—Lt. Col. Martha McSally, the one suing the defense secretary for violating the rights of women and the freedom of religion over the military's when-in-Saudi-where-what-women-wear-there rule—permit me to identify the group backing her lawsuit. That is the Rutherford Institute, which bills itself as "dedicated to the defense of civil liberties and human rights" and which has been headed since its founding by one John M. Whitehead, whose recent columns—accusing Attorney General John Ashcroft of McCarthyism and such—sound themes much like some of yours (and some of mine). Remember the Rutherford Institute? In a Dec. 29, 1997, column, you called it a "right-wing organization [that] is helping to pay [Paula] Jones's expenses" in her sexual harassment lawsuit against President Clinton. What a difference a client makes.

Best,
Stuart

Stuart Taylor Jr. is a National Journal columnist and Newsweek contributor.

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