A Growing Imposition of Fear  

In 1933, as the United States was in the grip of the Great Depression, newly inaugurated President Franklin Delano Roosevelt made a famous speech. Addressing the people of the U.S., he told them: 

 

“So, first of all, let me assert my firm belief that the only thing we have to fear is...fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. In every dark hour of our national life, a leadership of frankness and of vigor has met with that understanding and support of the people themselves which is essential to victory. And I am convinced that you will again give that support to leadership in these critical days.” (emphasis added) 

 
This speech, widely interpreted as a call for national unity and calm in a time of serious crisis, has been quoted many times in subsequent years. I do not need to recount the subsequent historical events, or to say that actions did not always match these words, as those events are well known. 

I have been thinking of this speech lately though. There are different themes threaded through the actions of the current U.S. Administration, but the one that seems most dominant is that of instilling fear. Threats and extraordinary actions are being used to silence political opponents, and creating fear appears to be an intentional tool to advance governmental objectives. 

I thought of this as White House Deputy Chief of Staff Stephen Miller casually told reporters that the White House is considering suspending the privilege of the writ of habeas corpus. Miller cited the continuing unsubstantiated claim of an “invasion” that was used to justify the Administration’s invocation of the Alien Enemies Act to ship people to a prison in El Salvador without any due process. See my earlier post for a discussion of this problematic invocation, which has been invalidated in federal court decisions and is currently working its way through appeals. A similarly problematic claim of “invasion” underscores the governmental discussions of trying to suspend habeas corpus, because of the wording in the U.S. Constitution saying an invasion must be present, among other things. 

Habeas corpus has, of course, been the tool by which high-profile immigration detainees like Mohsen Mahdawi and Rumeysa Ozturk were released pending proceedings. Others have discussed habeas corpus in more depth than I can, but suffice it to say that the idea that a U.S. President could casually decide to suspend the ancient remedy of habeas corpus because of a non-existent “invasion,” is unconstitutional, ridiculous, and absolutely terrifying. It is habeas corpus that provided relief for some of the Guantanamo Bay detainees detained potentially indefinitely. See here and my book for more discussion of that issue. Habeas corpus is a major tool under the Constitution for stopping abusive detention practices. 

With a U.S. President who has expressed uncertainty as to whether the Constitution constrains his actions, the notion of removing habeas corpus is especially frightening, and most likely intended to be so. In Miller’s comments, he said some of the decision would depend on what the courts do, which seems like a not-subtle warning to the courts that this revocation could follow certain decisions. The President cannot unilaterally suspend habeas corpus (although some might argue over this point), and, of course, there is no “invasion” that would allow Congress to do so, but what will the Government do during a claimed suspension before the courts can issue orders, assuming the Government ultimately complies with court orders? See my post for a discussion of the Government racing to send detainees to El Salvador before a court order is issued. 

Fear was clearly a tool in that rendition of the 238 detainees to the Centro de Confinamiento del Terrorismo (“CECOT”) prison in El Salvador. Images of men, heads shaved and bowed, packed too closely together, could only have been intended to evoke fear among others who might face such a fate. Kristi Noem, U.S. Homeland Security Secretary, made this explicit as she stood in front of an overcrowded cell at the prison and warned others that they could face the same fate. I discussed those renditions and Noem’s stunt in different posts, here, here, and here. 

The arrest of a sitting judge and the Mayor of Newark, allegedly for interfering with immigration actions, has an obvious chilling effect for mere civilians who might wish to protest these actions, in addition to other implications. Even the arrest of someone like Rumeysa Ozturk, who was in the country legally and had her visa revoked, apparently because she co-authored an op-ed the Government did not like, has a chilling impact. 

The image of Ozturk’s actual arrest, which I discussed in more detail in a prior post, also seemed designed to create fear. It looked more like a kidnapping in broad daylight than an arrest, with masked people, lacking identifying information, surrounding and physically grabbing her on the street in broad daylight. 

It is not typical for people to be subjected to immigration arrest in such a menacing manner. This sense that fear is the intention is enhanced by Trump’s admonishment to those undocumented people in the U.S., that “[i]llegal immigrants who stay in America face punishments, including—sudden deportation, in a place and manner solely of our discretion.” Trump posted these comments when announcing an Executive Order establishing free flights and a payment of $1000 to those who voluntarily self-deport. Although he directed his comments to people in the U.S. without proper documentation, the arrest of people like Ozturk, who was in the U.S. on a visa until it was suddenly revoked, suggests that fear is being spread beyond undocumented noncitizens. The speculation that the Government would also like to send U.S. citizens out of the country, and has done so in a couple of cases, and even wishes to send them to prisons like that in El Salvador, adds to this mix of fear. 

Fear on the Streets of the U.S.? 

That theme of fear emerged again last week in a disturbing video of Immigration and Customs Enforcement (“ICE”) agents forcibly arresting a mother on the streets of Massachusetts. The incident was captured on video by Telemundo Nueva Inglaterra. Local police called the incident “harrowing,” and the video is indeed very difficult to watch. The video shows a group, including a mother and her 16-year-old daughter, struggling with ICE agents, as well as with local police. A two-month-old baby was being held by a family member nearby, and there were concerns about the safety of the infant. Although details are sketchy and seem to be under some dispute, it appears that neighbours tried to intervene to help the family, at one point forming a human chain and asking for a warrant and then finally calling local police, although some accounts say the ICE agents called the police.  

Worcester police released a statement, giving their account of the incident. The statement reiterated the civil nature of an immigration arrest, which is an important reminder, given the forceful manner of the arrests. The police asserted that they became involved because they were pushing back members of the crowd who were physically trying to stop the ICE agents (and possibly agents from other federal agencies). 

At least two people were arrested and charged with actions involving trying to stop ICE or interfering with the local police. As details are still emerging, I do not comment on that, but do note that this is hardly a typical scene on U.S. streets, or at least it was not until recently. Although Worcester police commented that they may not assist in an ICE action under Massachusetts state law, the video clearly shows Worcester officers surrounding the 16-year-old and forcing her face to the ground. The picture, above, demonstrates how forceful this was. Local police also chased off at least two bystanders who tried to protect the girl. A protest erupted later that day, calling on police not to assist ICE in arrests. A further protest took place on Mother’s Day, which organizers said was in opposition to the actions by ICE and local police against a mother and her children.  

According to the family’s attorney, the mother was in the U.S. undergoing asylum proceedings. Her three daughters, according to the attorney, are in the country on a deferred action program. The mother has not been accused of a crime, and there were no deportation orders for any of them. It is thus unclear as of now why the ICE action was initiated.  

This violent arrest of a mother and her child, who were unarmed and accused of no crime, was not just excessive, but it sends a narrative message of fear.  It would be irresponsible to treat current events in the U.S. as just another time of political dispute. The scenes described in this post are added to a long list of comparable scenes that understandably provoke fear. Even Trump’s plans to hold a military parade on his birthday in June, which echoes similar parades held by notorious authoritarian regimes, seems certain to have the effect, if not the intent, of inspiring fear. 

Standing Up to Fear and Intimidation 

Clearly there is much to fear in the current state of U.S. events. As Justice Blackmun said in a well-known case involving abortion rights, Webster v Reproductive Health Services, “… the signs are evident and very ominous, and a chill wind blows.” If scenes like what happened in Worcester, and elsewhere, can play out on U.S. streets, then fear may indeed be justified and may be intentional. 

It was reported this week that Hasan Piker, a popular streamer on YouTube and Twitch, was detained at the U.S. Border and interrogated for hours over his political views. Piker is a U.S. citizen who has been outspoken regarding Gaza and against actions by the U.S. Government. He was asked questions about his views on Hamas, Hezbollah, and even about Trump.  

Piker was eventually released and allowed to enter the country. In comments about the incident, he addressed the climate of fear in the U.S., saying “[t]he goal here is to put fear into people’s hearts, to have a chilling effect on speech that, like, the government is unafraid of intimidating you … Does this stop me from saying whatever … I want to say? Of course not. Don’t be ridiculous. But the reason why I wanted to talk about it was to give you more insight into what the government is doing, and to speak out against this sort of stuff.”   

The Atlantic posted an article, a couple of months ago, called “The United States of Fear,” with a tagline reading “[f]or anyone who’s in the president’s crosshairs—or who could be—it’s the dominant emotion of Trump’s second term.” This is evident on so many fronts. 

This post began with a famous quote about fear. Roosevelt admonished people in the U.S. on the destructive effect of fear, saying it “paralyzes needed efforts to convert retreat into advance.” Fear may be spreading via governmental actions in the U.S., but the courts, academics, lawyers (in legal actions and relating to actions against law firms), media, some universities, some states, some members of Congress, and some individuals have been impressive in standing up to advance, rather than allowing fear to cause a retreat from, foundational constitutional values.