What’s Happened to Our Civil Liberties?

No matter which side of the aisle you may have been dropped as a child, you must that the Bill of Rights has been eroded, severely. I’d go so far as to say that we live in a surveillance state where the 4th Amendment in particular has been leapfrogged by technology and by a much lower cultural expectation of privacy than existed even a generation before.  What’s happened to them, these rights we seem to take for granted? How do we reassert them? And why have they slipped out the door?

Second question first, because answering why we’ve been stripped of the Bill of Rights might help explain how we can get them back. It’s probably inevitable in the history of every republic that representative government gets replaced by fascism. And before you go accusing one side of the aisle or the other, keep in mind that fascism doesn’t come from the left. It doesn’t come from the right. Neither traditional party is more its natural heir. Autocracy and repression are collective human tendencies that in some senses are more natural, more evolutionarily programmed in our species than are notions like democracy. Looking at history, it wasn’t long after the Liberty, Equality and Fraternity of the French Revolution, the first real democratic revolution in Europe, that Robespierre’s Reign of Terror, mob rule by guillotine, was replaced with the Emperor Napolean. We long for stability, and are willing to mortgage our freedoms and pay them to those who promise to deliver us security.

Perfect security is a myth.; it does not exist in nature, said Helen Keller. Yet a people always seem to buy the lie that they can purchase it in the currency of their freedoms. And so, a tyrant cannot rule without the implicit consent of the governed. We need to look to ourselves.

On a more specific historical level, the rise of the administrative state after World War II gave entre to the slow mortgage of our rights, which is ironic because the guarantee of those freedoms was sought and won through the blood of men and women who sacrificed themselves in that last great war, great not because of vainglory, but because it was the last war fought by this country against the tyranny our Government has become. It was the perceived need for security, the usual suspect, which frightened us into letting Them (the State) gradually abscond with our freedom. In the case of the subsequent Cold War, the threat was defined as external, but with a subversive, internal element. I’m referring, of course, to the Red Menace. The legislative and judicial branches willingly ceded authority to the Executive, where martial force needed to be concentrated, we believed, in order to defeat the far enemy. Yet because we believed that enemy would corrupt the minds of our children, our paranoia also conceded power to the law enforcers within the Executive. These were the last vestiges of the weak presidency envisioned by the Framers of the Constitution.

Further blows were struck by the War on Drugs and the War on Terror. The former saw the creation of the DEA and the additional strengthening of the FBI and other federal law enforcement agencies. In fact, law enforcement was increasingly federalized. The war on organized crime saw the creation of the RICO Act. It dismantled the mafia, but then, the loose interpretation of federal jurisdiction gave the central government jurisdiction through statutes like RICO over everything from accounting firms to the Catholic Church. Bureaucratic mission creep meant that these laws, first designed in the 1960’s and 1970’s, far exceeded the legislative intent behind these laws, which were, as Robert Kennedy, the AG at the time, famously related, were to Get Hoffa.

Civil forfeiture laws, civil proceedings which were intended to hamstring the defense of drug kingpins, began to be used against ordinary citizens with no criminal histories. Under such draconian measures, individuals accused of crimes had their assets seized, and the burden of proof remained on ordinary citizens to prove that their assets were not the proceeds of criminal activity. Thus, the war on drugs increasingly became a war on the American people.

After 9-11, the Patriot Act condoned mass surveillance of branches of the American government on the American people.  Supposed judicial oversight of executive surveillance powers through instruments like the Foreign Intelligence Surveillance Act (FISA) court became a joke, as the vat majority of warrant requests proposed by the Department of Justice in domestic surveillance cases were rubber stamped by the FISA court, uncritically.

Now, the threat which loomed was terrorism. Again, since it had a subversive, domestic component as did Communism, U.S. citizens, who had long forgotten that the blood of prior generations had been spilled in wars waged against tyranny and oppression, that our very birth came from such a struggle, willingly traded those rights away, especially the 4th Amendment right to privacy.

The other factor which contributed to the demise of our freedoms was the leapfrogging of technology over a flexible but still historically-rooted document like the Constitution and its amendments. Since World War II, and especially since the advent of internet technology, it is difficult for our founding documents to keep pace with changes in  connectivity such as the web. How could the Framers have envisioned an internet? None of the rest of us could even as late as the 1980’s. Combine this with a generation that grew up with a lessened expectation of privacy because they knew the internet, but not what existed in terms of privacy before it.

The theme of loss of freedom, of a surveillance state gone awry like a dystopian golem-like system, is the feature of much of my long and short fiction. I practiced law for awhile in Chicago, focusing on 4th, 5th and 6th amendment cases. I have a degree in political science. So I feel the need to at least chirp a couple times before the gas in the mine puts us out. I know I’m nota voice in the wilderness, that organizations like the Electronic Privacy Foundation sing the canary’s song long and hard, before and after me. Point is, somebody better start listening and get out there in the streets in peaceful protest before its too late.

Do you feel any safer than you did before they started listening in? And who are more afraid of, the terrorists and criminals, or your Government?