ISSUE NO. 3 | FALL 2004 1 THE NYU REVIEW OF LAW AND SECURITY APUBLICATIONOFTHE CENTER ON LAW AND SECURITY AT NYU SCHOOL OF LAW Are We Safer? In New York City? In our states? In the country at large? 1 Are We Safer? Table of Contents 2 FROM THE DIRECTOR 31 SECURING THE HOMELAND The Hearts and Minds of Americans: 32 Overview Language, Facts and a Nation in Fear 33 Programs of Note 4 THE VIEW 37 Viewpoints: Frank Cilluffo, “The FROM NEWYORK Mission of Homeland Security” 5 Overview 39 Book Review: Mark Shulman on 6 Viewpoints: Howard Safir, Richard A. Clarke, Against All Enemies: R.P. Eddy, and Others Inside America’s War on Terrorism 11 Profiles: New York City Police 40 Profiles: Tom Ridge and Cofer Black Commissioners Raymond Kelly, 41 Readings David Cohen and Michael Sheehan 12 Programs of Note: Operation Atlas – NYPD in Action against Terrorism 40 QUARTERLY FEATURES 43 CLS in the News 13 THE USA PATRIOT ACT: 44 Film Review: Karen J. Greenberg, “Lost WHERE ARE WE? WHERE DO (and Misguided) Among the Ruins: Control WE GO FROM HERE? Room, Fahrenheit 9/11 and Outfoxed” 14 Overview 45 Faculty Publications 14 Viewpoints: Alice Fisher debates 46 Student/Alumni Corner: Sheridan Stephen Schulhofer; Larry Thompson England, “On the Detention of Persons on “The USA PATRIOT Act” of Special Interest” 27 Profiles: Larry Thompson, 47 Our Dedicated Staff Viet Dinh and John Yoo 47 Fall Events 28 Terrorist Trial Updates 30 Readings 2 From the Director THE HEARTS AND MINDS OFAMERICANS: LANGUAGE, FACTS AND A NATION INFEAR Strolling down the street, sitting in traffic, listening to campaign slogans, one hears the question daily: “Are We Safer?” Whether we want to or not, we cannot help but bend our ear in the direction of the voice that promises an answer. Rarely is the answer firm or reassuring. Always, it seems these days to be partisan or driven by political concerns. “Yes, we are safer,” the Republicans tell us, except when they want to encourage fear as a basis of support for continuity in the White House or for the war in Iraq. “No,” the Democrats tell us, figuring the image of the Republicans as insufficient protectors cannot but help the Democrats in the coming election. Citizens line up according- ly. But the question of the nation’s safety is only partly a matter of conjecture; it is also a matter of fact. ince September 11, the country has taken numerous steps legisla- the situation, wins the battle of interpretation. Take, for example, the tively, judicially, militarily and in the Oval Office to ameliorate word ‘coalition,’ which in reality consists of U.S. troops with compara- S weaknesses in our security system. Some of these measures have bly negligible troops from England and a few small countries; or the proven effective, some have not. Policymakers continue to scrutinize the statement that the U.S. is “bringing democracy and freedom” to the efficacy of our border control, our information gathering and other Middle East. This use of words as “euphemism, question begging and counterterrorism measures in the hopes of assessing these measures. But sheer cloudy vagueness,” Orwell’s description of politically slanted in the heated political atmosphere, the conclusions on both sides have speech, is a basic technique of language misconstrued for political ends: become suspect. “liberation” instead of occupation, “military justice” instead of incom- The relationship between safety and the legitimacy of authorita- municado detention, “unlawful combatant” instead of prisoner of war, tive analysis is not something to be overlooked. The respect for lan- “collateral damage” instead of civilian deaths, “enabling interrogation” guage is a sign of the authenticity of the relationship between citizen instead of torture, and so on. and state. It is, in that sense, fundamental to a functioning democracy. American policymakers are eminently aware of the firepower of Education, as envisioned by Jefferson and the founding fathers, was linguistic ammunition and of the importance of George W. Bush seem- first and foremost education of the citizen and at the heart of that ing like a confused, lost communicator. It is part of the process of spin- education was the proper and learned use of language. In the context ning the nation. If Orwell were around, he might want, in the case of of American society, religious doctrine reinforces in theory the sanctity President Bush and his entourage, to add a new category for the cur- of impeccably used language. rent state of affairs: posing. How could someone as clueless and full of If language is an inviolable basis of the social (and personal) contract, it human foibles have an evil plan? He’s just a regular guy, with a regular is also the first tool in the battle for power. As language goes, so goes poli- guy’s language. What he says must be right. It’s just down-home, sim- tics. George Orwell insisted that there is a direct correlation between the ple fact. Criticism of the government is treason, lack of support for the integrity of politics and the honesty with which those in power use lan- President is a lack of support for the troops, spending American lives guage. So, too, for the obverse. “Corrupt language leads to corrupt politics.” and money abroad at the rate of 20 million dollars a day is patriotism Consider, in this context, the use of language by President George W. and love of country. Bush and his administration. On the one hand, we have the President Yet in contradistinction to the signs of verbal laxity on the part of who displays a disregard for the word so much so that it has become a Bush, the careful selection of words, coordinated at the executive level, trademark of sorts. “Nucular,” not nuclear, “subliminable” not subliminal, to launch the war in Iraq and by extension the war on terror at home, “embetter” not improve, “resignate,” instead of resonate. More, he relish- has been a strong and unflagging tactic of the Bush Administration as es the colloquial, in his case, the slang of American Westerns. When it they have tackled the Axis of Evil and the possibility of unknown ter- comes to Osama, his goal is to “Smoke ‘em out,” and when it comes to rorists among us. They understand, as the political philosopher Hannah the insurgents in Iraq, he dares, “Bring ‘em on.” Arendt once wrote that the misuse of facts, the use of “deliberate false- But while George Bush downplays language as something to hood,” is “clearly an attempt to change the record, and as such, it is a respect and pay too much attention to, his administration is busy lob- form of action.” Powell’s insistence before the U.N. that there was “evi- bing terms of great import at the American public. In the battle for dence, not conjecture” of WMD’s in Iraq, and that his facts were “true” the hearts and minds of Americans, Bush’s circle of advisors has created and “well-documented” has turned into the admission that there did a lexicon of terms aimed at persuading the American mind with the not seem to be weapons of mass destruction. The public denial of any word itself. The terminology which labels the multiplicity of changes knowledge of torture practices and the subsequent release of documents on behalf of national security and the war on terror are full of exam- sanctioning torture would be another case of the use of misinformation ples: Homeland Security, the Patriot Act, and the Citizens Corps. as action. The duplicity was intensified by the attack on those who Not to mention the use of value statements as strategic euphemisms questioned the initial assertions of the government. Rumsfeld, members designed to quell further thought, as if to say that he who first labels of Congress and others attacked the media for “hurting our chances,” THE NYU REVIEW OF LAW & SECURITY | FALL 2004 3 by “dwelling upon the mistakes, the ambushes, the soldiers killed, the wounded,” rather than the signs of progress. And what of the Democrats? It seems they have lost their dictionar- ies and have ceded to the Republicans the role of wordsmiths, as if one of the perks of power is the right to control language. One can only assume either that they agree with the Republicans on some level, or that they are scared. The Republicans, they know, will label their words propagandistic and they want to avoid that, it seems, at all costs. But what about taking an oath to use language simply as it is used in the dictionary? Killing is killing, whether it is by a terrorist or an American soldier. From that, they could graduate to facts. The numbers of dollars spent and Americans killed is not an abstraction; it is not a matter of debate. It is a fact. As is the relationship between the Saudis and the Bush family, whether harmful or benign. And so on. The press has not always been helpful. They have helped spread the factual errors of the Bush Administration by refusing to fact-check, as if unwilling to put themselves in the position of pointing to errors of fact. There was no yellow cake uranium sent to Niger. There were no weapons of mass destruction. There was little to no chance that the oil in Iraq would be able to be sold on the market until after a complete re- haul costing vast sums of time and money reengineered them for pro- ducing crude oil. The fact is that Democrats and Republicans alike have ceded to the Bush Administration’s unspoken conviction that all words, all use of facts are ideology.