Someone once said that the only way Americans will lose their civil rights is when they vote them away. That's almost true; they can also be voted away by our elected representatives. You know, the ones whose judgement we're supposed to trust.
The revolting FISA legislation has been approved by Congress and signed by a victorious president. The 60-odd US Senators who voted in favor of this no-compromise, compromise legislation have my permission to use “the Chicken-hearted” after their names as an accurate label. Our right to privacy, and the right to free speech are more significantly compromised than ever before.
One of the most publicized of the arguments was whether telecommunications carriers should be held immune from prosecution for their part in illegally (as it turned out) tapping communications without a warrant from the FISA court. The people who represent US citizens decided that telecoms get a “get out of jail free” card; worse, warrantless taps are still supported by telecoms when there is a letter of permission from the attorney general and the director of national intelligence. This is an extension of the “trust me” requirement that the executive branch is so fond of. I would think the job approval ratings would make it clear that we want government in the “trust but verify” zone. Anyway, I would suggest that legal scholars challenge the entire theory of accomplice liability…there is now precedent to suggest that, under certain circumstances, aiding and abetting a criminal activity should not be prosecutable.
We are often told that during an emergency we must sacrifice our liberties for security. Benjamin Franklin confirms that this is less than wise when he said: “Those who sacrifice liberty for a little temporary safety deserve neither liberty nor safety.” But liberty versus safety is not a real trade-off. In the US today, it merely represents a change in menaces. Yes, government snooping may coerce or intimidate certain people, but the government suggests that this will make the commonwealth freer. So, we presume, would be holding prisoners without trial, torture (pardon me, intense questioning), and leading Congress around by the nose through fear and political intimidation. There is no real tradeoff because the fear continues to exist, but the threat comes not from foreign terrorists alone but from our own government. One legislator said that there are no civil rights when you are dead. Yes, but they are typically worth dying for, as many brave folk through our history have done.
So the US federal government presents its own threats to liberty. Its claims of promoting greater total liberty - that the threats from one's own government are less than the threats from the "outside" - are difficult to substantiate and are, I suggest, invalid.
Let's look at privacy for a moment. There is no specific right to privacy in the Constitution, although elements of such a right can be gleaned from the First, Fourth, Fifth and Fourteenth amendments to the Constitution. The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. U. S. (1928):
"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect."
Another such thought was articulated by Thurgood Marshall in Stanley vs Georgia. He wrote: “Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." What is the chilling effect on speech that the FISA act offers but a subtle effort at controlling minds?
But perhaps I am being harsh when I impugn government's motives for wanting to subvert free speech and privacy. Even if I am, it doesn't matter. Justice William O. Douglas reminds us: "What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. . ."
I wish Congress had noticed that.
