Wednesday, December 26, 2012

Happy New Year, 1984

As 2012 comes to a close it seems more and more likely that the new year will not be 2013, but rather George Orwell's 1984.  While it is still difficult to envision the oppressiveness of Mr. Orwell's Stalinist Oceania taking root in the United States, Sinclair Lewis was right to warn us in a similarly themed novel that simply believing, "It Can't Happen Here," will not secure our liberty.

I remember about a decade ago having a conversation with someone, who was likely a partisan Democrat, who asserted he couldn't support George W. Bush because of the PATRIOT Act.  While I didn't think quickly enough to ask whether or not he had voted for Bob Dole in 1996 because Bill Clinton proposed the same measures in his 1995 anti-terrorism bill, I do think he was right to be leary of the PATRIOT Act.  Its only saving grace was that provisions would sunset unless renewed, so that if it was an overreach it could be corrected later when cooler heads prevailed.  Unfortunately, the PATRIOT Act has been renewed in its entirety (most recently in 2011).  Its most controversial provisions include allowing the government to search your personal records, whether library, financial, medical, etc., without your knowledge or consent; allowing for secret searches of your home or property without your advanced knowledge; allowing the government to demand your records from a third party by subpoena (a security letter) that requires no probable cause or judicial oversight; broadening the definition of a domestic terrorist; making easier to deport legal aliens; and loosening the FISA (Foreign Intelligence Surveillence Act) restrictions on eavesdropping.

As threatening as these measures are to civil liberty, what has happened since is absolutely chilling.  After discovering that the Bush administration had been ignoring the FISA law and not getting warrants for eavesdropping on calls made overseas, Congress, instead of impeaching the President, passed amendments to the FISA law essentially allowing warrantless eavesdropping.  More recently, the government has created the National Counterterrorism Center to sift through any and all government databases to look for evidence of possible criminal activity, even for individuals not currently under active investigation.  Although Senator Patrick Leahy (D-VT) has, for now, dropped his bill that would allow the federal government to read all e-mail without a warrant, the Senate recently left provisions to require a warrant for all e-mail searches (regardless of how long it has been stored on a third party site) out of amendments to the Video Privacy Protection Act.  Federal courts have ruled that the government does not need a warrant to track your whereabouts via your GPS enabled cell phone.  On December 31, 2011, President Obama signed the 2012 renewal of the National Defense Authorization Act (NDAA), a provision of which labels the United States as one battlefield in the war on terrorism and therefore anyone apprehended on U.S. soil, suspected of terrorism, can be detained indefinitely without charges being filed and without access to counsel or the courts.  At the President's insistence, language that would have protected U.S. citizens from this treatment was removed from the bill before final passage.  Although an amendment sponsored by Senators Mike Lee (R-UT) and Diane Feinstein (D-CA) that would restore constitutional protections of due process to American citizens suspected of terrorism was passed last month, Congress seems poised to pass a 2013 renewal of the NDAA that strips American citizens of this protection (further proof that lawmakers don't read the bills as the Senate voted for the amendment restoring protection for U.S. citizens 67-29 and then voted for a 2013 NDAA stripped of those protections 81-14).  Finally, the government maintains a program of targeted assassinations of suspected terrorists and reserves the right to assassinate even American citizens suspected of terrorism without due process.  Actually the administration claims that internal review by White House officials constitutes "due process."  It is a strange concept of due process, indeed, that does not involve formal charges, confrontation by an accuser, access to counsel, review by an impartial judge and trial by a jury of peers.  As discussed in a previous post, the administration has already assassinated American citizens under this program.

So what does all this mean?  It means that it is currently considered legal for the government to sift through your personal records and information in government data bases, read your e-mails, eavesdrop on your overseas phone calls, monitor the books you check out from the library or videos you rent, and track your whereabouts via your mobile phone all without your knowledge and without a warrant.  If, after this massive invasion of your privacy, it then suspects you of terrorism or ties to terrorists it can apprehend you and hold you indefinitely without access to counsel or without a trial.  Or, alternatively, it could order your execution, again without leveling any charges or allowing access to counsel or trial by jury.  In other words, your fourth amendment protections against unlawful searches and seizures and your fifth amendment protection not to be deprived of life, liberty, or property without due process of law have now become completely meaningless.  Since all this can be done in secret and without warrants or trials, the government need not produce publically or in court any evidence whatsoever that their suspicions about you are true and therefore there is actually nothing preventing the unscrupulous from misusing this authority arbitrarily.  In other words, your only real protection against having these powers used unjustly against you when you have done nothing wrong is the good intentions of those that wield this power.  Perhaps the current administration is scrupulous about who it spies on, who it detains, and who it assassinates; but even if that is true, what is to prevent subsequent administrations from being less scrupulous?  Doesn't this level of government surveillence, government detention, and government assassination sound like Big Brother's Oceania?  And it has already happened here.

In her novel, Uncle Tom's Cabin, Harriet Beecher Stowe is quick to point out that owner's like Simon Legree are the exception rather than the rule.  Her point is that no matter how unlikely it is for an owner to treat slaves like Simon Legree treated Tom, a system under which such treatment is perfectly legal is immoral.  Likewise no matter how unlikely it is that the above powers could be turned on innocent American citizens, a system in which doing so could be construed as perfectly legal cannot be allowed to stand.  Benjamin Franklin warned us that, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."  Yet this is route we, as a nation have taken.  And so we usher in a new year that is not really 2013, but rather Orwell's 1984.

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