Big brother, where art thou?

The U.S. government’s invasion of our civil liberties has sent a chill down the spines of many Americans

BY DANIEL BLACKBURN

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

–Benjamin Franklin, Historical Review of Pennsylvania, 1759

Spying on its own citizenry is hardly a new undertaking for the U.S. government, something even the government admits:

"Electronic surveillance techniques provide the means by which the government can collect vast amounts of information, unrelated to any legitimate governmental interest, about large numbers of American citizens. Because electronic surveillance is surreptitious, it allows government agents to eavesdrop on the conversations of individuals in unguarded moments."

These words were contained in the final report of the Select Committee to Study Governmental Operations, simply called the "Church Committee" after its chairman, Sen. Frank Church, in 1976.

Helping prove that some things never change, the 27-year-old report focused on excesses committed by government agents. In that case, the G-men were concerned that left-leaning organizations were plotting the overthrow of the government, largely through college campus activities like toga parties.

A government-sanctioned program called "COINTELPRO," for counterintelligence program, was developed to infiltrate organizations and spy on U.S. citizens involved in both lawful and unlawful activities. Months of intensive and intrusive congressional hearings were held before policies of the spy agencies were ostensibly changed.

But modern Americans exist in a new kind of atmosphere, one rife with newly spawned fears of terrorism on the home front.

And that in turn is creating potential new dangers to individual freedoms. Now, as a result of sweeping federal legislation that won easy passage during the past 18 months, some people believe personal freedoms are eroding at a pace so rapid that only a superhuman effort can slow it.

Advancement of technology serving human communication has been incredibly fast. So, too, has the technology allowing others to listen in on that communication.

The times, they are a-changin’.

If some scholars are to be believed, no single occurrence has the social impact–and contains the mischief potential–as does the USA PATRIOT Act, passed overwhelmingly by a shell-shocked Congress on Oct. 26, 2001, only 60 days after the Sept. 11 World Trade Center attack.

The acronym stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001." Expansive provisions of the Act contain authorization for sweeping changes in immigration laws, tightened controls on money laundering, and greatly expanded legal use of electronic surveillance.

An individual is no longer confined to a particular telephone or computer, but rather allows the search to "rove" wherever the investigation’s target goes.

Almost before the USA PATRIOT Act’s growing legion of critics could get to full voice, another law sailed handily through Congress: the wide-ranging Homeland Security Act, termed by one U.S. senator, Patrick Leahy, D-Vt., as "the most severe weakening of the Freedom of Information Act in its 36-year history."

Together, the two pieces of legislation form the nexus of what some people fear is rapidly emerging, perhaps irreversible: Big Brotherism.

But do Americans really care? Are they, as a society, the least bit concerned about protecting their own hard-won civil liberties?

Jane Kirtley, a syndicated columnist and professor of media ethics and law at the University of Minnesota, doesn’t think so.

"The message from the American public to Congress seems to be, ‘Information is dangerous. I don’t want to take any responsibility for my own security. Keep me safe, and don’t tell me how you do it,’" Kirtley wrote in a recent issue of the American Journalism Review.

Last month, civil liberties advocates including Ralph Nader took out a full-page ad in the New York Times to proclaim that the government is "reading your medical records, scrutinizing your credit card bills, searching your home or business without telling you, patrolling your Internet use, wiretapping your phone, spying on you in your house of worship, examining your travel records, inspecting your book store purchases, snooping on your library records, and monitoring your political activities."

The ad’s writers suggested that the "Bill of Rights is being shredded," and that the "Bush Administration has shamelessly used the war on terrorism as an excuse to operate a secret government that restricts every American’s civil liberties while deepening its costly entanglement with avaricious corporations."

Writing in a national political newsletter called CounterPunch, journalist Walt Brasch suggested that most members of Congress failed to even read the 342-page USA PATRIOT Act before voting it into law.

"The Act reduces judicial oversight of telephone and Internet surveillance and grants the FBI almost unlimited, and unchecked, access to business records without requiring it to show even minimal evidence of a crime," he wrote.

According to Brasch, "The federal government can now require libraries to divulge who uses public computers or what books they check out, video stores to reveal what tapes customers bought or rented, even grocery and drug stores to disclose what paperbacks shoppers bought.

"The effect of the USA PATRIOT Act upon businesses that loan, rent, or sell books, videos, magazines, and music CDs is not to find and incarcerate terrorists–there are far more ways to investigate threats to the nation than to check on a terrorist’s reading and listening habits–but to put a sweeping chilling effect upon Constitutional freedoms.

"The Act butts against the protections of the First [free speech], Fourth [unreasonable searches], Fifth [right against self-incrimination], and Sixth [due process] amendments," wrote Brasch.

Some scholars optimistically believe that public opinion will shift one of these days from "security panic" to an environment of healthy debate regarding potential dangers posed to freedom by the act.

After all, they note, the USA PATRIOT Act has a built-in sunset provision–several sections will expire, unless Congress renews them, on Dec. 31, 2005.

Judith Krug, a First Amendment advocate In Washington, D.C., doesn’t see it so rosily.

"The Act going to be used [improperly] as long as someone thinks they can get away with it," said Krug, adding, "Until Americans start challenging the Act in the federal courts, we’ll be lucky if we can ‘sunset’ out any of it."

In a New York Times editorial published on the first-year anniversary of 9/11, editors worried about the impact of hastily assembled and swiftly passed legislation affecting civil freedoms.

"To curtail individual rights, as the Bush Administration has done, is to draw exactly the wrong lessons from history. Every time the country has felt threatened and tightened the screws of civil liberties, it later wished it had not done so," the Times editorial opined.

Those "wrong lessons" may well be the result of a dearth of education.

The Christian Science Monitor recently reported that "a First Amendment Center study into the health of free speech and related liberties in schools came up with dismal results." When asked which rights are protected by the First Amendment, only "3 out of 4 public school teachers and administrators recalled freedom of speech, but fewer than one 1 of 4 could name the other four."

If teachers are clueless about civil liberties, how can children learn the importance of sheltering those liberties from all those who would curtail them?

But at least one county school official was hopeful in the face of such criticism.

"I believe that a lot of people, including parents, aren’t really informed about what goes on in their own kids’ schools," said George Galvan, president of the Atascadero Unified School District’s Board of Trustees. "But young people are very aware about what is going on, and they are aware of their rights. If anyone really is going to protest the loss of rights, it will be the young people–I would wish everyone would, but I think the young will be the first to complain."

A former National Security Counsel consultant, Morton Halperin, wrote in The New Yorker that if a government intelligence agency "thinks you are under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, copy your hard drive, and never tell you that they have done it."

There are, naturally, at least two sides to this story.

The government’s position is succinct: Trust us, we’re all in this together, we wouldn’t do anything illegal.

Privacy and civil rights advocates tend to be a little more detailed in their opposition to what they consider encroachments on personal freedoms.

Specifically, the USA PATRIOT Act will shift power from the courts and remove nearly all oversight for law enforcement and intelligence gathering activities related in any way to "national security." A court no longer needs to determine that there is probable cause of criminal activity prior to a search or seizure.

Instead, when the FBI decides, under the new rules, that information it seeks has "a significant purpose" in an intelligence investigation, courts cannot intervene.

Another provision allows the government to enter your home in your absence, search, take pictures, and seize property, without telling you about the visit. This is referred to as "the sneak-and-peek law."

Law enforcement still must secure a search warrant, but officials no longer have to give timely notice as presently required by the Fourth Amendment and the Federal Rules of Procedure. Any kind of search criteria in any kind of criminal case now falls within the authority of law enforcement.

Judges are required to issue blank warrants without reference to a particular location or jurisdiction, if law enforcement authorities are willing to certify the surveillance is "relevant to an ongoing criminal investigation."

Telephones and computer Internet connections can be intercepted, read, and kept by government agents, upon their simple statement that they are conducting a terrorist-related surveillance.

Secret testimony can be used against persons accused in domestic criminal cases, and against immigrants who can be incarcerated indefinitely.

The so-called sneak-and-peek provisions of the Act remind Nat Hentoff, a columnist for the conservative Washington Times, of one-time FBI czar J. Edgar Hoover’s policy of "black bag jobs."

"FBI agents may now enter homes and offices of citizens and non-citizens when they are not there. The agents can look around, examine what’s on a computer’s hard drive, and take other records of interest to them," Hentoff wrote. "While there, the FBI can plant a ‘Magic Lantern’ in the computer. The device creates a record every time a key on the computer is pressed. During the FBI’s next visit, that information can be downloaded."

Before giving up all hope for the future, however, it might be helpful to know that whatever you read about the USA PATRIOT Act might be the paranoid ramblings of insane conspiracy theorists. Recall, for example, another utterance by old Ben Franklin, whose words opened this tome: "The man who reads nothing at all is better educated than the man who reads nothing but newspapers." Æ

 

News editor Daniel Blackburn can be reached at [email protected].