Is America Losing its Sense of Liberty?

This week I made a contribution to the podcast at The POD delusion. It was meant to go up last week, so some of the references are not quite timely. Following is the script I was speaking from. The text is slightly different, as the audio version was edited for length.

America. Land of the Free. Home of the Brave. Country of my birth. The United States of America was founded at the end of the 18th century by visionaries who sought to create “a more perfect union” and “secure the Blessings of Liberty” among other lofty goals. A government of the people, by the people, for the people. And underpinning all of this was the grand idea of Liberty. “Give me liberty, or give me death” proclaimed Patrick Henry to the Virginia Convention in 1775. Give me Liberty or give me death. This is a demand for freedom from tyranny - one that can scarcely be ignored. Agreement among the delegates to the Philadelphia Convention of 1787 to enact a Bill of Rights helped to ensure the ratification of the Constitution itself, addressing the concerns of some of the Founding Fathers that the Constitution did not protect the fundamental principles of human liberty. The Bill itself borrowed heavily from the English Magna Carta and consisted of the first ten amendments to the US Constitution. 

All this talk of liberty, but what is it? At its most basic, liberty refers to the natural condition whereby a human being is free from outside compulsion or coercion. Freedom is therefore limited by the extent to which one’s actions infringe upon the freedoms of another. This is certainly the meaning of liberty that is ascribed to the Constitution. Surely with its rich history of rugged individualism and its stalwart bootstrap culture, America the free would always jealously guard basic liberty, no? I’d always thought so. But I’m worried now. I worry that Americans are losing the sense of liberty and what it means to be truly free. Americans seem ever more willing to tolerate the intrusion of government into their private lives for the sake of some false sense of security. It may not be too late, but when I think of all that has been lost in the last decade I don’t know quite how to go about getting it back. 

Last year an American man from Seattle, Washington called Phil Mocek was arrested at the airport in Albuquerque, New Mexico after he refused to stop filming his security screening by the Transportation Security Administration (TSA), a division of the Department of Homeland Security responsible for travel security. He also failed to provide identification on request. Last month after a two day trial, Mr Mocek was found by a jury to be Not Guilty of all charges brought against him without even presenting a defence. The video taken by Mr Mocek that the police used as evidence showed that he had politely and calmly asserted his rights at all times. TSA agents and police who testified were forced to admit in cross-examination that there were no laws prohibiting the use of photographic or audiovisual recording equipment in the public areas of an airport, nor is a ticketed passenger required to show ID for a domestic flight, nor can the TSA or police legally interfere with his ability to travel by air unless the police have a reasonable basis for believing that a crime has been or is being committed. The Not Guilty verdict was a major victory for liberty and common sense, yet it’s difficult to see how anything will change as a result of it. The TSA do not publish their standard operating procedures, which would inform members of the public of what powers TSA agents have and what travellers must submit to. The Department of Homeland Security refused to furnish the TSA’s procedures when requested under the Freedom of Information Act, instead merely furnishing the titles of these procedures. Even these had never previously been published. How can a traveller assert his or her rights in the face of such arbitrary authority without a published code to refer to? How can the legislature, the judiciary and “We The People” decide whether these procedures are necessary and in the public interest unless they are published? I’m genuinely at a loss. I’ve written to my Congressman, both state Senators, Secretary Janet Napolitano and President Obama. I’m not expecting much of a response. Phil Mocek has incurred thousands of dollars in legal costs for which he has not been compensated, nor have there been any disciplinary proceedings against any of the agents or officers who abused their powers, nor has there been any corrective action taken by the agencies involved. How did we get here? How could America allow the creation of a security apparatus that is unaccountable? Is this what it takes to feel safe at home? I don’t feel safe. Land of the Free. Home of the Brave. 

Yesterday I learned that the Department of Correction (DOC) of the state of Maryland has a blanket policy whereby any new hires or recertifications are required to submit to a background check and to provide the government with their social media account usernames and personal passwords. 

Yes. That’s right. Let that sink in a minute... and let’s continue. Raise your hand if you can think of anything that is wrong with this. Raise both hands if you’ve managed to work out that there are many aspects of this policy that are deeply disturbing and in fact outrageous. In a letter to the DOC by the American Civil Liberties Union acting on behalf of an employee undergoing recertification, the ACLU describes this policy as “a frightening and illegal invasion of privacy for DOC applicants and employees -- as well those who communicate with them electronically via social media”. The rationale, according to one investigator, is “to enable the government to review wall postings, email communications, photographs, and friend lists, in order to ensure that those employed as corrections officers are not engaged in illegal activity or affiliated with any gangs”. This is equivalent to a demand to read an applicant’s private diary and rummage through the photo albums on his shelf – in his home. Oh, and also to read letters that his friends have sent to him and to rummage through their personal effects as well. This makes me livid. What gives a government department (or any employer for that matter) the right to do this? Nothing. It violates at least two of the first ten amendments. Some bureaucrat thought this sounded like a good idea and nobody thought to challenge it. Led to believe he had no choice but to comply, officer Robert Collins surrendered his Facebook login details to his employer. Ask yourself what you would have done in his place. Land of the Free. 

In July 2010, hacker extraordinaire Jacob Applebaum, creator of the Tor privacy and security project and Wikileaks volunteer, was detained at Newark’s Liberty Airport in New Jersey after a return flight from Holland. Applebaum was pulled aside by Customs and Border Patrol agents who informed him that he was selected for a random search. According to sources, Appelbaum, a U.S. citizen, was then taken into a room and frisked, and his bag was searched. Receipts from his bag were photocopied, and his laptop was inspected. He was then questioned by officials from Immigration and Customs Enforcement and from the US Army. When he asked to speak to a lawyer, he was told that he was not under arrest and therefore did not have the right to legal counsel. His laptop was returned to him after three hours, but his three mobile phones were seized. During this time the officials asked him about his Wikileaks activities and his opinions about the wars in Iraq and Afghanistan and God knows what else. Applebaum declined to answer without a lawyer present. He was not allowed a phone call. 

I would be grateful if someone could please explain to me how a person can be detained against his will and questioned by government officials with the possibility of self-incrimination without in fact being under arrest. As far as I know, this is what it means to be under arrest. This is the very definition of under arrest. A law enforcement official cannot simply say “you are not under arrest” in order to get around the pesky problem of constitutional rights. That’s a bit like pouring a bucket of water over someone’s head and then saying “you are not wet”. Yet they will do this because they have the power to. They ought not to have this power, but they do because we allowed it by default. Home of the Brave, my arse. 

Governments always want more power over their governed. The national security gambit is the most sure fire way of grabbing more. Our security services manage to convince us that we need to give them more power so that they can more effectively keep us safe from harm. They feed on our fears and remind us that we expect them to do everything in their power to keep us safe. We believe them and hold them to account when they fail, as they inevitably will, to keep us completely and absolutely safe. They convince us yet again that they need more power, and the hysterical feedback loop begins its next cycle. It must stop. America, please wake up and take back what is yours before it is too late. When government grants itself new powers it is very reluctant to give them back. Emergency powers, which were only ever meant to be temporary, somehow manage to remain in effect for years, even decades. The threats don’t retreat; they remain. Total security in a democratic society is a pipe dream. But we must take a risk based approach to managing threats, otherwise the biggest threat to peace and prosperity, the biggest threat to life, liberty and the pursuit of happiness is the government monster that is incapable of protecting its citizens from itself.