Authors: John W. Whitehead
In the name of fighting terrorism, government officials are now permitted, among other things, to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they told anyone that the government had subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients, search and seize Americans' papers and effects without showing probable cause; and jail Americans indefinitely without a trial.
The federal government also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, banks, and other financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.
Despite the fact that more than four hundred local, county, and state resolutions were passed in opposition to the Patriot Act, Congress, at the urging of the Bush Administration, renewed several of the Patriot Act's more controversial provisions, which were set to expire at sunset on December 31, 2005. The USA Patriot Improvement and Reauthorization Act of 2005
took government intrusion into the lives of average Americans to a whole new level, allowing the FBI to write and approve its own search orders–what critics termed "carte blanche for a fishing expedition"– without having to show any evidence that the citizens under investigation may be involved in criminal activities.
Barack Obama proved to be little better than George Bush in terms of civil liberties. For example, on February 27, 2010, just a little over a year after taking office, President Obama quietly signed into law three controversial provisions of the Patriot Act that were set to expire. The "roving wiretaps" provision allows the FBI to wiretap phones in multiple homes without having to provide the target's name or even phone number–merely the possibility that a suspect "might" use the phone is enough to justify the wiretap. The "lone wolf" provision allows intelligence gathering on people not suspected of being part of a foreign government or known terrorist organization. And Section 215 of the Patriot Act allows court-approved seizure of records and property in so-called antiterrorism operations.
The National Defense Authorization Act
America's so-called war on terror, which it has relentlessly pursued since 9/11, has forever altered the political and legal landscape of our country. It has chipped away at our freedoms, unraveled our Constitution and transformed our nation into a battlefield. Justifying his support of legislation allowing for the indefinite detention of Americans, Senator Lindsey Graham proclaimed, "Is the homeland the battlefield? You better believe it is the battlefield."
America has indeed become the new battleground in the war on terror. In light of this, you can rest assured that there will be no restoration of the civil liberties jeopardized by the USA Patriot Act and other equally subversive legislation. Instead, those in power will continue to sanction ongoing violations of our rights, relying on bureaucratic legalese to sidestep any concerns that might be raised.
The National Defense Authorization Act of 2012 (NDAA), which was passed by the Senate with a vote of 93-7,
is a perfect example of this. Contained within this massive defense bill is a provision crafted by Democrat Charles Levin and Republican John McCain and signed into law by President Obama which mandates that anyone "suspected" of terrorism against the United States–which can be very loosely defined–be held in military custody indefinitely and without trial. This provision extends to American citizens on American territory.
The bill also revokes the citizenship of any person accused of terrorism.
Taken collectively the provisions within the NDAA completely circumvent the rule of law and the constitutional rights of American citizens, reorienting our legal landscape in such a way as to ensure that martial law, rather than the rule of law–our U.S. Constitution–becomes the map by which we navigate life in the United States. In short, if legal challenges are unsuccessful,
this law will not only ensure that we remain in a perpetual state of war–with this being a war against the American people–but it will also empower the president to unilaterally impose martial law in the United States at any time of his choosing.
A Return to Pre-Revolutionary Days?
Journalist Radley Balko notes, "There's an old Cold War saying commonly attributed to Winston Churchill ... that goes, 'Democracy means that when there's a knock on the door at 3 a.m., it's probably the milkman.' The idea is that free societies don't send armed government agents dressed in black to raid the private homes of citizens for political crimes."
Unfortunately, our once "free" society and the protections that accompany it have been steadily eroded by legislation and court rulings that render the individual completely defenseless against the encroachments of the state. In a very real sense, we truly are back to where we started in those pre-Revolutionary War days, seemingly having learned next to nothing from those early days of tyranny at the hands of the British crown.
We are once again being subjected to broad search warrants, with the police and other government agents trespassing on property without regard for the rights of owners and the blurring of all distinctions–for purposes of searches and seizures–between what is private and public property. Once again, the courts and state legislatures are seen to favor the interests of government officials, especially law enforcement, even at the expense of civil liberties. Indeed, there is no true justice in a court system where the judge, the prosecutor, and the police form a triad against the accused. And once again, Americans are finding themselves underrepresented, overtaxed, and forced at gunpoint, practically to dance to the government's tune.
The similarities to pre-Revolutionary America are startling. For example, since the time of the nation's founding, Americans have taken to heart eighteenth century British Prime Minister William Pitt's sentiment that "every man's home is his castle."
However, the right to the sovereignty of one's personal property was sorely challenged by the Quartering Act of 1774, a policy that forced the colonists to provide accommodations for British troops in their homes at night, while these same soldiers terrorized their towns by day. This constant invasion of the colonists' privacy by the British soldiers was condemned in the Declaration of Independence and was ultimately outlawed by the Third Amendment.
People often question whether the Third Amendment, which places our homes off limits to the military, is still germane to our lives today. While Americans no longer have to fear the quartering of troops in their homes, as the cases detailed below illustrate, the safeguards keeping the government out of our homes are fast eroding, especially in an age where military and paramilitary police units such as SWAT teams are treated as superior to the average citizen–all with the approval of the court systems.
For example, in May 2011 the Indiana Supreme Court broadly ruled in
Barnes v. State
that people don't have the right to resist police officers who enter their homes illegally.
The court rationalized their 3-2 ruling legitimizing any unlawful police entry into a home as a "public policy" decision. On its face, the case itself is relatively straightforward: an Indiana woman called 911 during an argument with her husband. When the police arrived, the man blocked and then shoved an officer who tried to enter his home without a warrant. Despite the fact that the wife told police her husband hadn't hit her, the man was shocked with a stun gun and arrested. Insisting that it would be safer for all concerned to let police proceed even with an
action and sort it out later in court with a civil lawsuit, the court held that residents can't resist police who enter their home–whatever the reason. The problem, of course, is that anything short of complete and utter acquiescence and compliance constitutes resistance. Thus, even the supposedly protected act of free speech–a simple "Wait, this is my home. What's this about?"–constitutes resistance.
Added to that, the U.S. Supreme Court effectively decimated the Fourth Amendment in an 8-1 ruling in
Kentucky v. King
by giving police more leeway to smash down doors of homes or apartments
a warrant when in search of illegal drugs, which they suspect might be destroyed if the Fourth Amendment requirement of a warrant were followed. In this particular case, police officers pursued a suspect they had seen engage in a parking lot drug deal into an apartment complex. Once there, the police allegedly followed the smell of burning marijuana to an apartment where, after knocking and announcing themselves, they promptly kicked the door in–allegedly on the pretext that evidence of drugs might be destroyed. Despite the fact that it turned out to be the
apartment, and a violation of every tenet that stands between us and a police state, the Supreme Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered. Yet as Supreme Court Justice Ruth Bader Ginsburg, the lone voice of dissent among the justices, remarked, "How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?"
Courts of Justice?
The varied expressions of the government's growing power, which get more troubling by the day–the excessive use of tasers by police on non-threatening individuals, allowing drones to take to the skies domestically for purposes of surveillance and control of free speech protesters, the government's monitoring of emails and phone calls, just to name a few examples–are merely the outward manifestations of an inner, philosophical shift underway in how the government views not only the Constitution and the Bill of Rights, but "we the people," as well.
What this reflects is a movement away from governmental officials who are bound by the rule of law. If not checked, it will inevitably lead to a government that seeks total control over the populace through the imposition of its own self-serving laws–laws carried out by a police force hired to do the government's bidding and upheld by a judiciary more concerned with legalism, statism, corporatism, and elitism than with preserving the rights of the people.
Many who drove the engines of freedom in pre-Revolutionary America believed that the courts would provide a barrier for the people against governmental encroachments. Unfortunately, that is no longer the case. In fact, what used to be called courts of justice are in reality more like courts of order–that is, maintaining governmental power and authority, even at the expense of the Constitution and citizens' rights. For example, the U.S. Supreme Court's decisions in recent years, characterized most often by its abject deference to government authority, military, and corporate interests, have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens.
This outright regard for governmental authority at the expense of individual freedoms was most apparent in the Supreme Court's 2012 ruling in
Reichte v. Howards.
In its unanimous decision, the Court actually held that immunity protections for law enforcement officials, specifically Secret Service agents, trump the free speech rights of Americans. In backing the Secret Service, the Supreme Court made it clear that when called on to strike a balance between the reach of government and the rights of Americans, government will win out virtually every time.
Similarly, the Supreme Court let stand a federal appeals court decision in
Brooks v. City of Seattle
, in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop, were granted immunity from prosecution.
The appeals court judges rationalized their ruling by claiming that the officers could not have known beyond a reasonable doubt that their actions– tasering a pregnant woman, who was not a threat in any way, until she was unconscious–violated the Fourth Amendment.
Florence v. Burlington
, a divided Supreme Court actually prioritized making life easier for jail officials over the basic right of Americans to be free from dehumanizing strip searches. In its 5-4 ruling, the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (that is, they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks and could involve touching.
Even the Supreme Court's 9-0 ruling in
U.S. v. Jones
took great pains not to limit the government's ability to monitor our activities.
The ruling, which declared that police must get a search warrant before using GPS technology to track criminal suspects, was written so narrowly as to only apply to "physical" intrusions. In an age where law-abiding citizens can easily be tracked using signals from our cell phones, this amounts to little protection at all. In fact, drone technology, cell phones, mobile body scanners and facial recognition software are just a few ways in which the government can conduct surveillance on the American people
physically invading their privacy.