Who Shall Police the Policemen? - 06 June 2003

This week a problem of government came up which I suppose has existed since time immemorial.

When some wrongdoing is suspected in an institution who should do the investigating and who should hand out the punishment?

The ancient Romans put the problem in a nutshell: Quis custodiet ipsos custodes? - Who shall police the policemen?

Too often, in this country anyway, the suspects immediately choose to investigate themselves till a public outcry - as for instance over the investment and accounting scandals - forces some independent body to take over, which of course ought always to be the procedure.

When the Titanic sank nobody would have believed an investigation by the White Star Company even if it had been impeccable. It quite rightly went at once to a commission.

The equivalent in this country for a matter equally grave - the assassination of President Kennedy for instance - was conducted by a commission of public men of all stripes, parties, non parties, appointed by the president.

So we had good cause to fear that nothing much better than a whitewash would come out of the news that the Department of Justice was going to examine the methods and the legality of the hundreds of immigrants who were rounded up by the FBI after the fateful 11th September, were thrown into jail - in some places treated harshly - but mostly therefore imprisoned without cause or prospect of a trial.

Why should we fear the worst from this investigation? Because the suspects being investigated are employed by the investigator. The FBI is the policeman, the enforcing arm of the Department of Justice.

Last Tuesday the Department of Justice issued a report and it's a stinging one.

It blames the FBI, in New York city especially - where remember the original outrage was committed - for failing to distinguish between immigrants who might be connected with terrorist groups and people, mostly Arab immigrants, who were just picked up at random.

I must say it seems to me a very remarkable and acute distinction the FBI was suddenly required to make in the roaring smoke of the Twin Towers.

The report cites as automatic victims of the FBI's arresting procedure 762 people detained around the United States but concedes that all but a handful were, at first questioning, seen to have broken the immigration laws by having stayed on beyond their visa limit and got lost or have come into the United States illegally.

The report says even so they should not have been immediately put in jail without a hearing for an indefinite stay.

What ought to have been followed, it says, is the normal procedure of releasing them on bond and then giving them a hearing and then deciding either to let them go or to deport them.

Of course that's normal but these, what the report calls "haphazard arrests", took place in an extremely abnormal crisis of national security.

For all any of us knew on the 11th, 12th, 13th September the White House and the House of Representatives might have been blown up.

Only three days after the dread 11th the government began warning the mayors in hundreds of cities across the land to start guarding every office or building connected with city, state, American or British government.

Even two months later, in November 2001, I think I mentioned before how a guest of mine was an English scientist, a world expert on building and maintaining tunnels.

In the late afternoon we were indulging ourselves with the cup that cheers and only gently inebriates when he strolled over to the window from which, at this moment, I'm looking out on the lush spring foliage of Central Park and the clear waters of the reservoir.

There was, as there always is, a jogger panting his lungs out round the encircling path.

"Just to think," mused my friend, as he turned away, "if he were carrying a simple envelope with an ounce or less of powder and tossed it over the fence into the reservoir."

In the first few days, weeks of understandable alarm maybe the FBI did, as the report says, overact.

They were also the first public servants to recognise what millions of good Americans and possibly most Europeans still don't see, that since the 11th we have all been the victims of the Third World War and it's a war unique in being a war against an invisible enemy.

The report made me remember the first time I flew, took a flight, after the suicide bombers hit the Twin Towers and the Pentagon.

It was the first week in December and I was off to San Francisco.

Once we'd settled in our seats and the stewardess had flashed her smile I leaned back and watched the incoming passengers pass up the aisle - marvelling, as usual, at the variety of people's shapes and sizes and wildly different ideas of what is just right to wear on a long distance journey.

I imagine the passenger types were no more various than usual but my perception of them was, by which I mean that having glanced without a second thought at the alternation of whites and then at a black or two then a family of Hispanics, I became unusually aware of dark-skinned people and in particular of two, I believed, Arabs - one a tall, swarthy man with a towel of a head-dress, a beard and a long loping stride.

And a voice within me said: "If you'd been an inspector at the security check-in gate, would you have paid special attention to this swarthy man?" And I heard my own voice say quietly: "Yes, I would."

I knew that in the previous two months a whole raft of new, tight laws had been passed and that 99% of the time they were being scrupulously followed. I'm talking about airport security measures.

But sitting there looking over the incoming troop of passengers I could see how in the real situation instinct might overleap legal niceties.

At any rate I believe that most of my breed - white, Anglo- or Euro-Americans - would, to put it crudely, be more wary of people who looked like Arabs than people who didn't.

After all by December 2001 the FBI had done a lot of work on the crew and passengers of the four suicide planes and it would not be long before they revealed the Arab identities of was it 16 out of the 18 involved in the suicide bombings.

But as I sat on that plane my morning newspaper reported a far-reaching outcry among dark-skinned people about what they call racial profiling at airports and the police all the country were being accused of it too.

I said, at the time, that I saw no solution to this, that it was more of a human situation than a problem and after the known performers of the September 11th atrocity it would likely go on and on.

We did not know then that there would be a rush of investigations and the report of the Department of Justice is only the first to be published.

And now Congress is engaged in a positively medieval legal struggle to find a law or laws of restraint that can quickly distinguish the guilty from the innocent in time of war.

I think we should notice that in every American war, since the war of 1812, the President, through Lincoln to Roosevelt, suspended habeas corpus - which is the right not to be put under restraint until you've had a court hearing.

If they decided then, as they did, that it was too perilous a procedure to maintain in the days of cannon and rifles and assassins with daggers, how much more risky and dangerously prolonged would the normal procedure be when the suspects are not a soldier in uniform or a spy on the loose but 80,000 who have skipped their legal stay or otherwise decided to meld in with the population for purposes unknown?

What the Congress has been doing, to the confusion of some citizens and the outrage of libertarians, is to pass a series of acts to create new bureaux to make and preserve computer records, not only of suspect citizens but why not of all citizens?

A patriot act, a total inside information act which would give the government a complete character analysis and history of you and your bank account and your relations and your credit standing, your medical records, your travels and on and on.

Obviously from the hullabaloo these new acts have caused they will be defeated or vetoed.

The whole problem is rooted in the difference between the criminal laws in time of peace and the rules of war.

As for the popular appeals to the Constitution of the United States, there's very little there about war except who may declare it - the Congress - who is authorised to raise the money for it - the House of Representatives - and a clause forbidding the billeting of soldiers in private houses.

The Founding Fathers thought of war as men marching across land to shoot each other and sailors in ships loosing cannon at each other.

But their remarkable foresight did not reach to precautions during undeclared wars in which a combatant not in uniform is capable of bombing or poisoning, as Saddam did.

How is he to be spotted, identified and arrested before he does it?

THIS TRANSCRIPT WAS TYPED FROM A RECORDING AND NOT COPIED FROM AN ORIGINAL SCRIPT. BECAUSE OF THE RISK OF MISHEARING, THE BBC CANNOT VOUCH FOR ITS COMPLETE ACCURACY.

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