While still in law school, I did my first work for the American Civil Liberties Union. My contribution was part of a team that successfully forced a state prison system to deliver Playboy Magazine to inmates who subscribed. A year later I found myself, still in law school, researching and drafting an ACLU amicus brief to eliminate the death penalty in one state. That effort was also successful, though the state would later reinstate the death penalty by citizen referendum.
20 years ago, or thereabouts, I came to the conclusion that the ACLU had strayed from its founding principle of protecting civil liberties to embrace certain politically correct causes regardless of their impact on constitutional rights. I left the organization as a result. Today I rejoined. The reasoning was straight forward. The ACLU is the preeminent national organization fighting to protect our rights and liberties in the face of the American Security State. It was time to put my money, and my affiliation, back where my mouth was.
Here are a few things that caught my attention as I did some factual research over the weekend:
• The Department of Homeland Security, which did not exist prior to September 11, 2001, now has more than 240,000 government employees.
• That number does not include the FBI and CIA, each of which works in coordination with DHS but is not officially a component of DHS.
• Since September 11, 2001, we have spent more than $1 trillion on counterterrorism, not including the cost of two wars.
• Since September 11, 2001, Approximately 350,000 Americans have died as a result of gun violence.
• Since September 11, 2001, more than 400,000 Americans have died in motor vehicle crashes.
Here’s how one expert from Ohio State University analyses the issue according to LiveScience .
John Mueller, a political scientist at Ohio State University who has written several prize-winning books on the fight against terrorism, said that each of us has a 1-in-3.5 million chance of getting killed in a terrorist attack each year, and that such a low probability is extremely difficult to further reduce. After all, no amount of effort will ever reduce the chances all the way to zero.
Meanwhile, the danger of other types of violent crimes is much higher; we have a 1 in 2,000 chance of getting murdered in any given year, for example. Mueller argues that excessive federal spending on counterterrorism has detracted from efforts to fight and prevent other violent crimes.
And, here is how the ACLU assesses the impact of mass surveillance on our previously protected constitutional liberties.
Using their power to collect massive amounts of private communications and data, agencies like the FBI and the National Security Agency (NSA) apply computer programs to draw links and make predictions about people’s behavior. Tracking people two, three, four steps removed from the original surveillance target, they build “communities of interest” and construct maps of our associations and activities.
With this sensitive data, the government can compile vast dossiers about innocent people. The data sits indefinitely in government databases, and the names of many innocent Americans end up on bloated and inaccurate watch lists that affect whether we can fly on commercial airlines, whether we can renew our passports, whether we are called aside for “secondary screening” at airports and borders, and even whether we can open bank accounts.
Dragnet surveillance undermines the right to privacy and the freedoms of speech, association, and religion.
Let me try to put this into perspective. In the past, pre Patriot Act, data could be collected on what phone numbers called into or were called from a particular phone. To do so required a pen register for each phone involved. And each pen register required an individual warrant based on probable cause. Doing otherwise was an unconstitutional violation of our civil liberties. Compare that to the mass data collection on innocent citizens currently being undertaken.
Allow me to also attempt to explain why our Security Apparatus goes beyond violating the right to privacy and also invades other rights like speech, association and religion. Our government is currently building a new data collection and storage facility outside of Salt Lake City. I’m no tech geek, but here’s what I’ve read. The capacity of this facility is measured not in kilobytes or gigabytes, but in yodabytes, numbers normal humans cannot even comprehend. Based on those who understand, the only foreseeable purpose is to indefinitely store all communications data to be retrieved “when needed”.
So when would it be needed? Speech that shows sympathy for a target group or associating with the wrong people. Both of these criteria are already being used. How careful will we need to be in the future about what we say or with whom we associate? Was I investigated because I wrote an article here that was critical of the assassination of Osama bin Laden? Your guess is as good as mine. It’s all secret you know. And, if you try to find out, the government will use the State Secrets Privilege to block access, even in a court proceeding.
There will be lots of folks who disagree with me on this. That’s ok. I don’t mind. We pesky civil libertarians get used to being disagreed with.
EDIT: You may also wish to read this provocative and fairly radical Tech Rights article from David Alexander Sugar. My favorite quote is:
“Privacy is ultimately about liberty while surveillance is always about control.”
/
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.