Civil Liberties & Confrontation Politics

...Engelstein is editor of Civil Liberties Forum, the paper of the New York Membership Committee for Civil Liberties, a group within the NYCLU that opposes its tendency toward "politicization" in the sense the author explains below...

...it must remove you and the car by force, and immediately...

...However, the New York Times reported recently the Quebec minister of justice's urging that all Quebec's 6.1 million citizens carry identification cards with the bearer's photograph, fingerprints, and address...

...The second danger of a political attitude is the narrowing of the Union's influence to those who agree with the political views of its more articulate spokesmen and the alienation of many civil libertarians who reject any kind of politicization...

...This notion has tragic implications...

...Now there is nothing necessarily evil in coercion itself...

...The people of Quebec were properly alarmed...

...The building of a large and effective civil liberties force in the country depends on uniting as many people as possible around the ideas of civil liberties rather than alienating those who disagree either with the particular politics of the NYCLU or the fact that it is political at all...

...LET US BEGIN by referring to the new thinking of some civil libertarians...

...Does it defend due process as part of its contribution to the antiwar movement and the struggle for justice for the poor, etc...

...You might argue that his freedom of speech on the scale of history or justice is less important than the cause of the students, whatever that might be...

...Would it not be better to criticize all violations of civil liberties, from our own point of view, in our own way, which is very different from that of the reactionaries...

...Confrontationism is a reaction to the magnitude and urgency of our social crises...

...For him and other NYCLU leaders, civil libertarianism is merely one more way of fighting the battle for social and economic justice, and where there is a conflict between "justice" and civil liberties, then civil liberties may be the victim...

...As a vice-chairman of the NYCLU said last year, "The struggle for existence by blacks, by migratory agricultural workers, and by peasants in Vietnam is so overwhelming that it doesn't leave room for Hyde Park speeches or Tom Paine leaflets...

...One French judge, referring to these tactics, said, "such provocation is always dangerous...

...Desperation has pervaded other nonpolitical organizations and moved them into joining the political fray...

...In general, the credibility of the NYCLU as a civil libertarian organization comes into question...

...Coercion and redress, restrictions and due process are the balancing forces necessary to any civil and democratic society...

...When a building is seized, which prevents a university from going about its affairs, the administration is forced to respond...

...This is a crippling criterion...

...Modem life has generated all kinds of new problems for civil libertarians, such as rights of welfare clients, conscientious objectors, soldiers, hospital patients, and so on...

...If you break the law by parking in the middle of a bridge to stop traffic, the state cannot ignore you...

...Whether or not confrontation settles the question at issue, it always raises the large question of power and thereby forces a response of power...

...If you break the law by parking on the wrong side of the street, the state can ignore you or simply give you a ticket...

...Who among us did not shudder over the recent events in Canada...

...The key therefore to confrontationism is that it provokes a counterforce...

...There is a pervasive uneasiness and ambivalence among some civil libertarians on this question...

...When it fights for the due process rights of welfare clients it often writes and talks as though it were in the middle of the class struggle fighting the cause of the poor...

...WE NEED AN ACTIVE CIVIL LIBERTARIANISM, not a passive one...

...For what civil libertarians think about the nature of civil liberties is itself an important factor in the survival of those liberties...

...Various professional or COMMENTS AND OPINIONS ganizations have passed political resolutions in the name of their societies...

...The indirect and more ominous threat confrontationism brings to civil liberties is the response it evokes from the authorities...

...A political approach to confrontationism might make distinctions between one type of confrontation and another in relation to their supposed goals...

...By directly I mean that when students prevent a professor from talking to or teaching his class, his freedom of speech is being denied...

...One might ask whether it is a cop-out to remain within the boundaries of civil libertarianism and not fight for social and economic justice for all...

...Since confrontationism poses instantly the question of power, the outcome is guaranteed in advance, because there is no question who has the greater power and who will win in a showdown...

...An instance of this was prompted by the ACLU report on campus disorders last year...

...You could not be a civil libertarian in a totalitarian society without immediately being in politics, for to fight for freedom there is a revolutionary act...

...In response to some imperative of "relevance," the very essence of civil libertarianism is now in the process of redefinition...

...But, while there is no real threat that existing authorities will lose their power, there is a serious danger of social chaos...

...The desperate methods of the confrontationists should find no welcome in the civil liberties movement...

...This, in my judgment, is an utterly false choice, and one that does dam age to both justice and civil liberties...

...The report dealt sympatheticallly with serious campus problems and legitimate student grievances...

...In that case you are waiving the civil libertarian concern for free speech in the interests of different, presumably higher, goals...

...If you have a society of laws with no means of redress, no system of due process, then you have despotism, whether benevolent under benign laws and leadership, or tyrannical under repressive laws...

...In a democracy the law, loosely and simply speaking, represents the consensus of society, historically arrived at, by which people agree to limitations on themselves in relation to the state and to each other...

...The Canadian government suspended civil liberties to fight a tiny group of French-Canadian terrorists...

...For the moment it is sufficient to underline that whatever may justify this confrontation, it cannot be denied that an infringement on civil liberties is involved...

...The ACLU had taken a civil libertarian approach...

...A group of people confronts an institution with the kind of force that prevents it from functioning...

...Some people think that in times like these all institutions should become involved in politics...

...or does it defend due process as an intrinsic value, the cornerstone of a free society, which makes it possible for others to fight for the good society, in a democratic way...

...For confrontation is a tactic that poses the issue of power between the confrontationists and the authority...

...If some nuisance insists on invading my house, I can get the law to coerce him to leave...

...If there is no force, or threat of force, then we are not talking about confrontation...

...By its very nature, it is indifferent if not antagonistic, to the rights of due process and constitutes a grave threat to civil liberties, directly and indirectly...

...Classic threats to civil liberties from legal and illegal government repression are easily recognized...

...This difference is crucial to the future of civil libertarianism and civil liberties...

...Artists have formed political leagues and have produced explicitly political art, usually to the detriment of their art...

...First, however, to some aspects of confronta COMMENTS AND OPINIONS tion politics and civil liberties...

...This danger was implicit in the statement of the attorneys on campus disorders...

...It is the distinction of a democratic state that it does not politicize all of life, that one can fight civil liberties battles, rally people from all classes and opinions behind your cause without getting involved in the political struggle...

...Law and order has also become a serious issue in France, where the police are consistently violating the civil liberties of New Left confrontationists...

...Down that road is neither civil libertarianism nor the just society...

...Apparently you should not criticize violations of civil liberties if the violators are fighting the good fight and are criticized by reactionaries...

...WHEN SELF-STYLED REVOLUTIONARIES, by terrorism or the threat of terrorism, confront the state with disorder, then there is a grave threat to the civil liberties of the whole society...

...If students occupy lecture halls and administration buildings and so prevent the university from functioning, then the authorities must respond with counterforce of some kind...

...the NYCLU attorneys had subordinated due process concerns to politics...

...The law forces us to go to school when we are young, to pay taxes when we work, to get married in certain registered ways, and so forth...

...but it also reaffirmed basic civil libertarian principles on due process as it criticized student violence...

...A little later I will turn to this new thinking in the NYCLU, because it too is a product of our social crisis and of the turbulence of confrontation politics...

...The people had better get used to the idea that police must have more adequate methods of controlling crime," he told a television audience...

...But to confuse political or economic goals with the due process rights of these people can only hurt the civil libertarian cause...

...Sufficient for our purpose is to define confrontation politics which affects civil liberties as that in which authorities, institutions, or individuals are subject to a form of coercion to which they can reply only by counterforce...

...It is easy enough to differentiate our kind of criticism from that of the reactionaries...

...Civil libertarians have not been exempt from this trend...

...Can one imagine the reaction of an Agnew-Mitchell mentality if the provocation reached the same heights here as in Canada...

...The authorities who often need no encouragement to repress militant oppositionists are provided with an apparently legitimate pretext for coming down hard on all rebellious elements...

...The threat to civil liberties from nihilistic eruptions of pseudopolitical groups are also not difficult to perceive...

...We are for the active defense of these rights...

...Would it mean, for example, that we should not criticize bombers because they are also criticized by AgnewMitchell...

...Since disruption is intolerable, it must be prevented in advance, and the state is driven to repressive measures that go beyond the law or to create new repressive laws that can cope with the threat to social order...

...The impact of our social crisis has injected a political criterion for civil libertarian judgment and action...

...But if one can differ about the politics of confrontationism, there should certainly be no ambiguity among civil libertarians about the response to confrontationism in its more coercive forms...

...But what is usually overlooked is the impact of the current social crisis on civil libertarians themselves and on their concept of civil liberties...

...It leads to passionate and disorderly repression...

...The following is an abridged text of a talk given at a recent symposium of the Brooklyn chapter of the New York Civil Liberties Union...

...Clearly, it takes very COMMENTS AND OPINIONS few people to cause monumental disruption...

...If civil liberties are merely an instrument in the fight for social justice, then there are two dangerous implications...

...We need to distinguish between confrontations, demonstrations, and breaking the law...

...Consider another aspect of this political infection: even when the NYCLU fights for straightforward civil libertarian goals, as it most often does, its rhetoric takes on a militantly political tone...

...The more extreme the coercion and the more disruptive the action, the more extreme will be the counteracting exercise of force to restore normal function...

...Not at all times nor in all cases by any means, but enough to point to a dangerous tendency...

...It makes one wonder whether the NYCLU would be as aggressive a defender of the same rights if the war were a just one, say a defense against atotalitarian invasion of the country...

...The more integrated the society, the greater the power of disruption by a few people...

...It is not simply a question of a large demonstration or of breaking the law...

...IN A DEMOCRATIC SOCIETY, this system of coercion is balanced by procedures and processes rooted in tradition or built into the law itself, whereby laws can be changed or their application challenged...

...Law involves restraint and restriction, and this coercion is necessary to any social order...

...But confrontation politics, by contrast, coerces without redress, imposes its will on individuals and institutions...

...But this is not the case...

...We will return to this point later...

...But it is a reaction of rage and frustration, one that can only harm the cause it proclaims...

...It seems that the operation was in fact conducted reasonably within the bounds of its intentions and did not become a wide dragnet for capturing all critics of the government...

...Thus, while confrontationism cannot replace power, it can disrupt power, at least temporarily...

...Without getting lost in philosophic intricacies, we must define, at least roughly, the central terms of our topic...

...This poses a dangerous dilemma for a democratic society...

...It said that the fight for a just cause did not legitimate violations of due process, whereupon four NYCLU staff attorneys immediately attacked the ACLU report for "joining the repressive forces of society...

...He is being coerced without redress by the arbitrary action of some individuals...

...It has been pointed out that every man's right to swing his arms freely ends where his neighbor's nose begins...

...This should remain our goal...

...But this is not done because of a basic unwillingness to criticize soldiers of "justice" even when they are the violators of civil liberties...

...There is only one kind of society where everybody and every institution must be involved in politics, where indeed a poem can be a political event and even chess strategy is not exempt from politics...

...Society coerces us all the time, and its coercion is embodied in its laws...

...They are presumably aimed at taking power to bring about social change, but there is no concern for rallying masses of people without whom no real change of power in the direction of greater justice or democracy can come about...

...I happen to think that even as politics, the politics of confrontation are nihilistic and self-defeating...

...If students occupy a gymnasium by way of expressing their demands, the administration has the choice of using force to get them out or continuing university activities without the gymnasium and waiting them out...

...The first and most immediate danger is that once the "just cause" criterion becomes the basis for civil libertarian action, then the civil liberties of your political opponents (who don't agree with your definition of the "just cause") will be ignored or violated...

...The law also denies me the right to walk into another man's home because that infringes on his right not to be disturbed...

...When it defends the due process rights of draftees, or free speech rights of soldiers or conscientious objectors, it often appears as though the war itself is the issue...

...That is of course a totalitarian society, of which there are not a few varieties around the world...