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 THE LIBERTARIAN ENTERPRISE Number 350, January 15, 2006 Pronounced "coo day tot"
The Future of Freedom
Special to TLE The New Year seems to be the one time of year when almost all of us simultaneously decide to take stock of our lives. We look at the year gone past; we make all of the best intentioned plans for the future.We consider our successes of the last twelve months and hope to build on them; we (hopefully) dissect our mistakes and determine to learn from them. I'm no exception to that annual personal review. A few years ago, just a few months after 9/11, I resolved to become more politically active. That's a resolution I (obviously!) kept when I first established Lady Liberty's Constitution Clearing House web site. Shortly thereafter, I wrote my first editorial commentary. In those early days, I often held something back though I didn't really realize it. But one day, as I was preparing some news headlines, I was having a problem writing a sentence or two offering my own take on a particular news story. I wrote something. Then I deleted it and wrote something else. That, too, proved unsatisfactory, so I started again. Since I usually don't have much of a problem thinking of something to say, I started to wonder why I was having so much trouble with a brief comment. I looked at what I'd written the first couple of times, and then it struck me: there wasn't anything wrong with what I'd written. It summed up what I thought nicely, and it said exactly what I wanted to say. But I was erasing the comments and trying again because I was worried about repercussions! It was at that moment that Lady Liberty was truly born. When I realized that I was permitting my own fears to hamper my freedom of speech, I promised myself I'd say whatever I thought needed to be said from then on. I wouldn't worry about what any government representative might say or do about it until somebody actually said or did something. Looking back, I can see that I might have been just a little paranoid. After all, I couldn't possibly have been important enough for anyone in government to take notice of what I was saying let alone take any action to keep me quiet! Three years later, I still don't think I'm all that important. But I have a very bad feeling that the government is taking notice anyway and making provisions to keep an eye on me—and you—wherever we go accordingly. Absent paranoia, what on earth would make me come to that kind of conclusion? Well, let's look beyond ourselves for just a moment and take a collective look back at the year that was. In 2005: Last May, despite opposition from activist groups on both ends of the political spectrum and millions of individuals, Congress passed the REAL ID Act into law with appallingly little debate. There are, of course, many reasons why a national ID card is a bad idea. Perhaps the most important reason is that, despite claims the card will make us all safer, it will actually likely endanger us in ways ranging from the danger of identity theft to national security. That we'll each be largely traceable at all times may be a plus for authorities who've long salivated over such an ability, but our own loss of liberty and privacy as a result cannot be overstated. A young man in Ohio was called a "paper terrorist" by a county prosecutor after his 'blog criticized northern Ohio officials and he and a partner filed court documents in connection with the allegations of corruption. He was arrested on a secret indictment and jailed on felony charges; he says he was told those charges would be reduced to a misdemeanor if he'd stop writing on his 'blog. That sounds to me not only as if he's being punished for speaking his mind, but that he'll be rewarded if he shuts up. Though his story garnered some publicity, he remains in danger of losing his case in the face of prosecutors who won't stop until he does. The Washington Post learned that the FBI is now issuing tens of thousands of national security letters (NSLs) every year. These letters, which don't require judicial review nor even after-the-fact reviews by supervisory personnel, very much mimic the legitimate warrants they're not. (The provision of the PATRIOT Act involving NSLs is the one that librarians are fighting so hard to see stricken.) Information gathered under these letters is typically filed by the FBI. At one time, the data gathered on innocent Americans was destroyed. But now, to compound the violation of privacy involved with NSLs, the report further takes note of the recent "Executive Order 13388, expanding access to those files for 'state, local and tribal' governments and for 'appropriate private sector entities,' which are not defined." News reports in recent months accused the Pentagon of being behind the infiltration and surveillance of activist groups who protested the War in Iraq. An NBC News reporter claimed that documents showed the Pentagon was putting information it gathered into a database; The Washington Post wrote that a "little known" Pentagon agency was also involved (the agency, Counterintelligence Field Activity or CIFA, was formed a few yeas ago with the stated objective of keeping domestic military bases safe). It is also stated that each branch of the military has begun working on its own methodology and more for domestic surveillance, something clearly forbidden it by Posse Comitatus. Even as the dubious merits of the PATRIOT Act itself were debated during the drive to make the sunsetting law permanent, there were those who wanted to expand the measure. Among other problematic areas of expansion was the redefining of domestic terrorism in such a way that even those speaking out against government policy could be termed terrorists under some circumstances. (That and other areas of potential abuse of the PATRIOT Act are detailed in depth by the Bill of Rights Defense Committee in a document available online as a downloadable pdf file.) As 2005 drew to a close, perhaps the biggest story of the year involved domestic surveillance being conducted by the National Security Agency (NSA). The president defended his orders for the surveillance by claiming it was limited and that it directly involved contact with foreign nationals overseas who were, in some manner, tied to al Qaeda. Unfortunately for the president, it wasn't long after that that news broke claiming that the surveillance was far broader than acknowledged. It's certainly not just possible but probable that any of us who wrote certain words or phrases over the course of the last few months or years were included in the data dumps. Lawyers for accused terrorists are already using the possibility that evidence against their clients was gathered illegally to see those clients released. If the evidence is ruled to have been obtained outside the law, the courts won't be permitted to use it. That could result in some guilty men being released, perhaps to engage in more terror operations. It seems to me that the president's rationale in defense of his legal ambiguities—keeping the country safer—may actually do just the opposite! In light of that frightening fact, it's difficult not to wonder if the scrapping of the Fourth Amendment will prove complete by some executive order demanding that courts not throw out evidence showing culpability no matter how that evidence was obtained. Adding insult to already grievous injury, news reports now indicate that the NSA shared the data it gathered with other government agencies. Keeping in mind that the Pentagon and CIA are already prohibited from domestic surveillance via various statutes, they and other agencies are now getting massive amounts of data that may not have been legally obtained even by the originating agency. There are, of course, other things that happened in 2005 that didn't favor freedom. (Of a total of over 3,500 news stories I highlighted during the year, almost 2,000 of them had negative repercussions for liberty.) But these are some of the worst of the offenders. I said at the beginning of this column that many of us use the New Year as an opportunity to look back at our mistakes, and to make resolutions to do better in the coming year. Our mistakes—re-electing politicians who don't keep their oath, failing to protest when enough voices might engender change or at least delay—means that freedom was grievously wounded in 2005. If there's even the slimmest chance it can recover, we're going to have to make—and keep—some significant resolutions this year: We must demand accountability from our politicians. That includes adherence, once and for all, to their oath to uphold the Constitution. While some in Congress have already started making noises that the president should be impeached over his orders instigating domestic surveillance by the NSA, it's my contention that most of them deserve to be impeached as well for betraying the Constitution they swore to uphold. At the very least, virtually every incumbent in Washington should not be allowed to serve another term. We must demand responsibility from ourselves. When we see something happening or about to happen that we know to be unconstitutional, we must stand up and insist such efforts be discontinued immediately. We must speak up even if our names do end up in databases, on "no fly" lists, or on secret indictments. We must determine to live free and then actually start working to do so. Over the course of at least the last six decades, we've been steadily losing liberty in exchange for entitlements or perceived security. But 2005 represented a real watershed year when it was actually acknowledged that some liberties were being infringed, but that such was "necessary" for our safety. 2005 was the year when some of the largest ever chunks of freedom were actually taken in gigantic government gulps, and too many stood by and watched it happen because it was "for your own good." If 2006 isn't to be the year when freedom is lost all together, we're going to need to do something dramatically different from what we did—and didn't do—in 2005. A year from now, what do you really want to look back and see? References National ID Cards and REAL ID Act Judge Jails Ohio Blogger Baumgartner Without Stating Reason Pentagon's domestic spying operations target opponents of Iraq war Bill of Rights Defense Committee Analysis of PATRIOT Act Expansion (pdf file) Eavesdropping Program Broader Than Bush Suggested; Congress To Investigate NSA spying scandal raises challenge in terror cases NSA gave spy data to other agencies
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