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What Are You Afraid Of if You Have Nothing to Hide?

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The Rights of the People: How Our Search for Safety Invades our Liberties by David K. shipler (New York: Knopf 2011), 384 pages.

Late this past spring, two U.S. senators finally had the courage to look Big Brother in its inhuman, electronic eye and try to come clean on the USA PATRIOT Act. According to Sens. Ron Wyden (D-Org.) and Mark Udall (D-Colo.), two PATRIOT Acts operate inside the United States: the first is the actual law passed immediately after the shock of 9/11, giving the government unprecedented powers to counter terrorism. The second is how the government interprets the legislation.

Why does the government’s interpretation send shivers down the spines of these liberals? It’s a simple and straightforward question, but Wyden, a member of the Senate Select Committee on Intelligence, can’t say, because in a perfect Monty Pythonesque punchline, it’s classified.

He can, however, vaguely outline what troubles him so. “It is fair to say that the business-records provision is a part of the PATRIOT Act that I am extremely interested in reforming,” he told Wired.com’s Spencer Ackerman. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the PATRIOT Act is being interpreted declassified. I think the public has a right to public debate about it.” That, however, has not happened. Instead, this past August the Senate Select Committee on Intelligence voted to keep the American public in the dark.

What’s distressing about this dog whistle isn’t that only a few can even hear it; it’s that the PATRIOT Act and other post– 9/11 intelligence and security policies have already cast a creeping authoritarian shadow over America. It’s this darkening landscape on which Pulitzer Prize-winning author David Shipler shines the floodlights in The Rights of the People, the first of twin volumes on the decline of American civil liberties since that grotesquely beautiful morning a decade ago.

In his first installment, Shipler tells intimate stories of American lives wrecked by government abuse and intrusion in violation of the Fourth Amendment — which protects citizens against unreasonable searches and seizures and requires probable cause before a search or arrest warrant can be issued. As Shipler reminds Americans, it’s not a new story. “In practically every war it seems, those wielding the authority of the state were gripped with a galvanizing fear, not just of the enemy abroad but of an imagined virus of resistance and subversion at home,” he observes, quickly summarizing America’s past descents into darkness, such as John Adams’s Alien and Sedition Acts, Lincoln’s suspension of habeas corpus, and Wilson’s Red Scare.

Occupied territory

Ironically for a book ostensibly about the evisceration of American civil liberties and privacy after 9/11, Shipler opens on the streets of Washington, D.C. Embedded alternately in an anti-gun task force and a narcotics squad, he is at his best detailing what it’s like to be young and black in the District. Aptly he calls the first of three chapters devoted to the city’s rougher neighborhoods “Another Country.”

For young black men in the nation’s capital, life is one big suspicionless search. The rule of law in this foreign land isn’t something to be observed and respected by police. Rather it’s something to be creatively evaded. Shipler shows how police aggressively use the Terry stop, which allows them to pat down suspects for weapons, ostensibly for self-protection, to fish for evidence of a crime when officers already have scant reasonable suspicion to stop someone in the first place. Many young black men don’t even need to be asked to be searched, they simply lift their shirts exposing their waistband as they stride by cops who are looking for guns. For those men, the police are not there to serve and protect; they’re an occupying force.

While Shipler never says it directly, it’s easy to conclude he believes the writing has been on the wall for some time now: Most Americans are just too privileged to have seen it. What has been happening to black men only miles from the Supreme Court for decades has begun lurking into the sycamore-studded cul de sacs of suburban America with the pigeon-hearted passage of the PATRIOT Act.

FISA

Immediately after 9/11, we were all New Yorkers, but a small minority, overwhelmingly Muslim, discovered they had more in common with D.C.’s wretched of the ‘hood.

Enter Brandon Mayfield, a victim of bad forensic work that led FBI investigators to believe this lawyer, veteran, and father played a role in al-Qaeda’s 2004 Madrid train bombing that murdered 191 people and wounded more than 1,400. Mayfield learned that he was under government surveillance only when agents broke into his home, leaving telltale signs — shoe prints —that a stranger had been there. The Mayfields, observant Muslims, did not wear their shoes indoors.

Mayfield had become the target of a FISA (Foreign Intelligence Surveillance Act) warrant, which allows government investigators to do deeply disturbing things in secret — for example break into homes, tap phones, copy computer hard drives, and sort through trash — to determine whether a person is an agent of a foreign power. Unlike criminal wiretaps, FISA warrants do not require the feds to notify a suspect that he is the subject of a government investigation. Also unlike traditional criminal warrants, FISA warrants allow blanket surveillance, not just interception of communications involving the alleged crime.

The rationale behind this evasion of the Fourth Amendment was that the primary purpose of the surveillance was to collect intelligence, not gather evidence for prosecution. But after 9/11, the PATRIOT Act amended FISA, making it easier to use information gleaned from FISA warrants in criminal prosecutions. (During the Cold War, Shipler notes, an outed spy was simply expelled from the country.) Those muscular differences, critics charge and Shipler agrees, give federal investigators the option of doing an end run around the Fourth Amendment, using FISA wiretaps rather than stricter criminal wiretaps. For instance, a senior Justice Department lawyer told Shipler that the FBI would have had no problem persuading a judge to give them authority to get a criminal wiretap on Mayfield: the FBI had what they erroneously believed to be a partial fingerprint of his taken by Spanish National Police from a plastic bag containing seven detonators that matched detonators found on an unexploded device.

Mayfield was innocent, but the FBI had already closed its jaws on him, so exculpatory evidence was rationalized away. “With Mayfield profiled as a Muslim involved in the Madrid bombings, the scattered bits and fragments of information that the FBI secretly collected were spliced into a gathering fantasy,” writes Shipler. “It was a thought process demonstrating the danger of clandestine spying, for when the target never has a chance to respond, the thinnest string can be spun into a shroud of suspicion.” Today Mayfield is a free man, but only because the Spanish National Police never believed he was a suspect in the first place and eventually arrested the right man, forcing the FBI to admit it had been wrong about the former U.S. soldier.

Shipler also doesn’t shy away from highlighting those incidents where someone vile got what he deserved, but only because the government bent the rules. Ronald Kline, a California judge, went to prison for 27 months after a hacker infected his computer with malware and discovered child pornography and writings describing the judge’s interest in young boys. The hacker then delivered the evidence to an organization called PedoWatch, which turned it over to the police. Is that hacker merely a good citizen doing his civic duty to protect young children, or a dangerous vigilante who has broken the law to serve his own sense of justice? Shipler thinks the latter and believes the evidence against Kline should have been thrown out of court, because the hacker had become a de facto agent of the state, and thus Kline’s Fourth Amendment rights had been violated.

Chilling effects

While Shipler is no Luddite, a persistent fear of the rapidly expanding power of technology courses through his narrative, because it makes it simple for the government, aided by FISA warrants, national security letters, exigent letters, or the random hacker, to surreptitiously invade the lives of its citizens by reading email, scanning call histories, and mapping movements.

Shipler worries that it’s all taking a toll on Americans’ right to be left alone, creating citizens fearful of exercising their rights and even their interests. “Some citizens begin to act as if someone is listening or looking in, and they take precautions,” he writes. “Reporters use disposable cell phones to avoid exposing anonymous sources in case calling records are secretly obtained. A producer doing a television documentary on circumcision hesitates to type the word into Google because it links to pictures of naked children….”

While some may roll their eyes and find Shipler’s fears overwrought, I find myself doing similar things. I try hard to write every email message as if some omnipresence will scan it for something inappropriate or something that could be used against me later. Eerily enough, as I write this I’ve just learned that in 2004 the FBI opened an investigation into Antiwar. com, a site that has republished my work and has interviewed me on articles I’ve written, to determine whether editorial director Justin Raimondo and a colleague “constitute a threat to National Security on behalf of a foreign power.”

Ode to civil rights

Shipler understands the ramifications this has on the nation’s marketplace on ideas. “If you think you’re being constantly watched, you may behave differently, for better or worse — better if you hesitate to shoplift because you’re on camera, worse if the spying steals your political fearlessness.” That produces a passive citizenry, especially among the talented, who have the most to lose. “Those who are careful to keep their files clean — who decide not to speak, not to assemble, not to step into what they fear might be a zone of government concern — take an invisible path away from civil society,” or at least move cautiously at the forest’s edge before taking a step into the open.

Reading The Rights of the People it’s hard not to be reminded of pastor Martin Niemöller’s famous statement about the rise of Nazism:

First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew. Then they came for me, and there was no one left to speak out for me.

Shipler plucks at a similar string, reminding people that the way we treat those accused of horrible things tests the health of our liberal democratic society and its commitment to justice. “The system, then, binds together the miscreants and the righteous: The most virtuous among us depend on the most villainous to carry the torch of liberty, for when the courts allow a criminal defendant’s rights to be violated, the same rights are diminished for the rest of us.” The process, Shipler argues, is as important as the outcome, because it’s far worse to send innocent people to prison or rip their lives apart than to allow the guilty to go free. That means citizens cannot allow the government to cut corners in pursuit of security. But try getting people to understand that.

“Freedom demands a certain state, not the open society, that strives to abolish risk.” Fear is a terrible thing: it transmogrifies marginal threats into existential menaces, empowering Leviathan, while neutering the skeptical and the humane. In his own way, Shipler has written an ode to American civil liberties, and possibly its eulogy.

This article originally appeared in the January 2012 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).

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    Matthew Harwood is a writer in Alexandria, Va. He holds an M. Litt. in International Security Studies from the University of St. Andrews. His work has appeared at The American Conservative, The Guardian, Reason, Salon, TomDispatch, The Washington Monthly, among others.