by Walker Rowe
The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.–Fourth amendment to the US Constitution
In this post 9/11 era and the resulting War on Terror, there are those who would not mind that American Muslims are targeted by the US Government for unlawful surveillance in violation of their Fourth amendment rights. There are those who would care even less about prisoners who locked up in Guantanamo Bay, Cuba presumably forever. This sentiment regarding the War on Terror is understandable. The vast ocean which used to protect Americans from terror did not seem vast anymore when terrorism exploded with a fury on American’s shores on 9/11.
But a couple of journalists, David Shipler and Jane Mayer, are questioning what we have given up in exchange for increased security. They say there has been a corresponding reduction in our constitutionally guaranteed rights against government surveillance and people should take note. Will anyone listen to these writers? Conservatives might not. Jane Mayer is a staff writer for The New Yorker, a magazine which has traditionally been hostile to the ideas of the neoconservatives and the War of Terror initiated by President Bush whose Patriot Act remains intact even though his presidency has passed. David Shipler is a former correspondent for “The New York Times” another publication whose opinion writers line up against Bush and his aftermath.
But all of us, conservative and liberal, should listen to them especially those followers of Ron Paul who call themselves “Libertarians”, for civil liberties is what is under siege. David Shipler argues that it is not just the War on Terror which has cut into the basic civil rights granted by the American Constitution but also the increased police powers arising from what President Nixon first labelled the “War on Drugs”.
Now could be the time to take a look at what we have done to ourselves as circumstances are changing. First, the USA is thinking of pulling out of Afghanistan so the war on terror is winding down even if the threat remains. Second, Americans and particularly Latin Americans have grown weary of the War on Drugs and want the USA to rethink its position. Mexico will elect a new president in a few months and the candidate who is leading in the polls has said he will stand down the army there and quit fighting the cartels. The newly elected President of Guatemala has said he wants to allow drugs to pass through his country unimpeded. Colombia agrees if only other countries agree as well. If these things come to pass the America DEA might no longer be welcome in parts of Latin America. So the military and police apparatus will have fewer places to go.
Because of the wars on drugs and terror there has been an erosion of the constitutional checks and balances which are supposed to keep America from becoming a police state. This is not necessary. After all President Roosevelt’s attorney general said, “The Constitution has never greatly bothered any wartime president.” This is what New Yorker staff writer Jane Meyer says in her book “The Dark Side“.
Mayer’s gives a day-by-day account of what happened in the Bush White House in the days and weeks that followed 9/11. She says, “Cheney delivered a hard-edged speech at the U.S. Chamber of Commerce in Washington declaring that terrorists do not deserve to be treated as prisoners of war.” After that Vice President Cheney and his followers basically wrote the regulations which became the Patriot Act which expanded government powers over its citizens and persons abroard. She says over a private lunch at the White House with President Bush, Dick Cheney handed over a dozen pages of tersely worded legalese to President Bush to sign into law. That Bush could not have absorbed all of this is made clear because his schedule during that time was divided into five minute segments. The rest is history with tales of the indefinite detention of suspects and war combatants, secret overseas prisons, and the torture of captives haven been told many times before.
Mayer explains that this new strategy broke with a long tradition in the US military beginning with General George Washington who declared that British soldiers captured during the revolution were to be treated humanely. Under President Bush the USA walked away from the Geneva convention to which it was a signatory. For example, regarding the captured American citizen who had joined with Al Qaeda in Afghanistan John Walker Lindh, Mayer writes, “The video tape captured the CIA officers warning Lindh that he might die if he didn’t talk. Death threats and mock executions are considered war crimes under the Geneva Conventions, and felony offences under U.S. anti-torture laws.”
David Shipler’s book takes a different approach to the erosion of constitutional rights in his book “The Rights of the People“. As former Moscow Bureau Chief of “The New York Times” in the 1970s he knows all about the erosion of civil liberties and life in a police state. He writes, “…parts of the Bill of Rights are eroding–dramatically in the war on terrorism and less obviously, more gradually, in the war on drugs and other common crime….All these are breaches of our founding principles.”
Shipler starts his chronicle with the 1968 Supreme Court ruling Terry v. Ohio which spelled out how far the government could go without violation of the Constitutional provisions against unreasonable search and seizures. Then he brings his history up to date by explaining the expansion of federal power under the Patriot Act which was first put forth by President Bush and renewed twice by congress including in 2010 when it was signed by President Obama. He writes, “In a string of cases beginning with Terry v. Ohio in 1968, the Court had been sketching blurry lines defining how far police could go before hitting the limit of ‘unreasonable searches and seizures’….”
The targets of Shipler’s criticism are the expanded powers of the police to search people, automobiles, and their houses and the expanded powers of the government to read one’s email, listen to cell phone and land line phone calls, and otherwise pry into the affairs of the citizens without any judicial oversight. These include Foreign Intelligence Surveillance ACT (FISA) wiretaps and a National Security Letter (NSL). The American Civil Liberties Union explains the NSL this way on their web site http://www.aclu.org/reform-patriot-act:
“NSLs allow the FBI to secretly demand personal records about innocent customers from Internet Service Providers (ISPs), communications service providers, financial institutions and credit reporting agencies without suspicion or prior judicial approval. The statute also allows the FBI to bar NSL recipients from disclosing anything about the record demand.”
Schipler explains what is a FISA wiretap this way, “The difference between FISA orders and criminal search warrants are monumental. While the target of an ordinary warrant is notified of the search at least eventually, the target of a FISA warrant has no such right to know.”
Ironically the expanded police powers given to the government came about because of prior abuses and attempts to reign them in. The public was outraged that FBI Directory J.Edgar Hoover had bugged Martin Luther King and other dissidents. So congress passed the law authorizing secret snooping, FISA, in 1978. The idea was to reign in such domestic spying. Even liberals were complicit. Senator Edward Kennedy reasoned that without the law “If you opposed a statue saying you had to have a warrant your be left with warrantless wiretapping”, recalled Jerry Bergamn chief legislative counsel of the ACLU.
Schipler begins his book with a historical introduction to the Bill of Rights and then takes the reader along for a ride in a police cruiser as it patrols the crime-ridden neighborhoods of Washington, D.C. He writes, “Take a few steps from the Constitution and you find yourself in the twilight of crime-ridden neighborhoods where cops frisk pedestrians and search cars without warrants, on the officer’s sole determination that they have reasonable suspicion or probably cause.”
He says that the original Fourth Amendment prohibitions against unreasonable search and seizure were relaxed by the courts as a way to provide safety to the police when they were in the middle of a chase. But then he says these expanded powers are now a routine tool in police drug investigations not at all related to safety.
“Legally, officers still have to suspect someone of carrying a weapon to justify the search, but if the frisk turns up drugs instead of a gun, the drugs can be used as evidence provided the judge believes that the police followed certain rules.”
The police use psychological tactics to, “…induce ‘subjects’ to consent to the search, thereby waiving their fourth amendment rights and avoiding a constitutional test, and most of the time it worked.”
This has impacted relations between the police and African Americans living in the ghetto immensely. The police actions are such that African American males routinely lift up their shirt to show the police they are carrying no weapons even before they are asked to do so. This might not bother the upper and middle class whites and Asians who live outside the ghetto because the Washington, D.C. Police do not patrol in this way in, for example, Georgetown. Of the ghetto Shipler says, “Those are the places, most distant from those who make the rules, where limits on police action grow less and less visible.”
That the police are out of control has even been confirmed by the police themselves. Schipler writes, “A federal narcotics prosecutor confirmed my hunch, ‘We’ve gotten now to the point where we can stop if we think they’ve got drugs only. It’s not necessary to have guns. Now it’s not reasonable suspicion that they’ve got something dangerous, but just reasonable suspicion.’”
Why should this concern law abiding citizens who do not live in the ghetto and who do not buy drugs? Because these enhanced police powers can ensnare anyone particularly as we live more and more of our lives online. Schipler continues, “Patting down nonwhites on the streets is the crude intimate version of a wide enhancement of police power, a broad intrusion on personal privacy that has grown technologically sophisticated as government has probed computerized medical records, email messages, credit-card transactions, financial transfer, and other digital information.”
Just last week the FBI captured a would-be suicide bomber in Washington, DC before he could explode the bombs which he had acquired from the FBI themselves. So there are those who would say the status quo is working. But Schipler and Myers might say, “Yes, but at what price”? What would the Founding Fathers think?
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