It was said on September 12, 2001 that “everything changed” on 9-11. This Curmudgeon, for one, never ascribed to that notion. The only thing that really changed that day was the level of awareness of the American people as to the risks and challenges that lay ahead of us. The increased awareness is of course a good thing-unless the awareness turns into panic.
And panic we did over the knowledge that those who would attack The Home Of The Free are already here in our midst. The terrorism hysteria manifested itself in the atrocious piece of legislation known audaciously as “The Patriot Act”.
Never in our history since the Alien and Sedition Acts have we been quite so cavalier in our attitude toward the Constitution. Certainly we have had other Chief Executives that bent and fractured their oath to defend the Constitution, but what stood out during the Patriot Act rubber stamping extravaganza was the Silence of the opposition. That Congress put up no fight whatsoever against warrantless searches and indefinite detention of suspects without charges is unconscionable.
I have been a strident critic of the Executive and Legislative branches of our government which rushed to grab power and placate fears with no regard to our Constitution and legacy of Human Rights, but it is an interesting question of whether the harm done by the Patriot Act is permanent or something more transient. It will be decades before we know the answer to this question, but I for one will be surprised if the damage done by allowing Congress to expand its powers in such a grandiose fashion disappears into the legislative sunset. My hunch is that the legal briefs have already been written that rely on the historical and legal precedent that Congress may use emergency powers to re-write our fundamental Constitutional protections in whatever manner they see fit. And of course if the Congress can do it in an emergency, then really “We the People” have not retained that inalienable right after all.
But I wish to lay aside the matter of whether the undoable can be undone and for a naively optimistic moment assume that reason and sound jurisprudence will return to our public discussion. It has been suggested to me that our time would be well spent to debate as a nation exactly where we will head and what we will tolerate when the “next 9-11” inevitably hits. I too think that would be wise, so here is my short contribution to the debate.
Technology is steadily eliminating what little privacy we have and in my view, we must resist all attempts to relax the proscriptions against government intrusion into our lives. Of course that piece of rhetoric, left to stand on its own, neatly side-steps the question of how permissible and impermissible intrusion might be defined, but I wish to pause on this basic point just the same.
Pause to simply point out the simple truth that Government, unfettered by Constitutional strictures, tends to accumulate power and to oppress its citizens. History is rife with examples of this axiom and our founders sought to protect its posterity from this fundamental tendency toward the accumulation of power. Our socio-legal system consists of a fine balance between the needs of the individual and those of the larger society. What is unique in our Republic is that we recognize the legal supremacy of individual liberties as a counterweight to the excesses of a government nominally pursuing the “general welfare”. This bit of genius is a big part of what has made America different and we should not abandon these fundamental precepts lightly.
But, on to specifics. What should be permissible police investigation in a nation that also recognizes extraordinary threats that are internal? My answer is simple: anything with a warrant. Anything where an officer of the law can make the case for “Probable Cause” to an independent judicial body. I for one do not buy the argument advanced by the hysteria generating political class that warrants are too burdensome. This simply does not pass the smell test. No matter how many times the Attorney General might repeat this lie, it will not make it true.
It is well established in our jurisprudence that warrants may be obtained under exigent circumstance through a phone call to a judge. I am not being novel or unrealistic when I suggest that this method for obtaining warrants can and should be expanded to assist in the fight against terrorism. Far better to add enough judges to the bench to make them accessible than to throw out the Fourth Amendment in a fevered rage. Frankly, this is so obvious and reasonable that I am stunned that we seldom hear it advanced. So much for our “leaders” who claim to care about civil liberties and who are sworn to defend the Constitution.
We hear much of data mining as well and it is suggested by some that data mining is new and distinct from sifting other forms of information. My Grandma had a technical term for that type of assertion: hogwash. Data is nothing but facts reduced to digital representation. It is a logical fallacy to suggest somehow a fact on a piece of paper in someone’s possession is ontologically different because it has been digitally recorded and is easily obtained. The key is in “easily obtained”. The desire for unfettered data mining is driven by the reality that it is easier than real police work.
I am not suggesting that data mining will not work. On the contrary, I understand that it can be a very effective tool for fighting all sorts of crimes. The problem I have with it is the cost to our liberties. This is a classic “slippery slope” from which there is no climbing back up. Can anyone doubt that once this “data” is accumulated that it will not be preserved forever no matter how unwise we might deem it to be in retrospect?
But only by looking at this from a philosophical perspective does this become truly terrifying. If we allow unfettered data mining, gone are the protections afforded us by the legal requirement of “reasonable suspicion”. Instead, we have entered a new and fundamentally different world where no suspicion whatsoever is required to investigate your purchases, education, or reading habits.
And if you believe the Attorney General’s statements to the effect of, “well, we just won’t use these powers in that way”, then you need to see your doctor about adjusting your Prozac prescription.
It doesn’t sadden me so much that there are few people who view such governmental over-reaching with outrage. What really depresses me is that there are precious few who even recognize that there are issues here worthy of discussion. These are matters that would have put previous generations in a complete uproar, but contemporary America is just rolling over and accepting it without real discussion.
Such is the end result of the dumbing down process our country has undergone over the last few decades. We are dumbed down to the point that a surprising number of Americans actually think that Shrub is a bright and honest guy.
There is indeed evil in our midst and something must be done. Determining that something to do gets difficult though when one understands that the evil is not alien to our society after all.
Exceedingly difficult when the evil turns out to be us.