March 2012

An inch and a mile

By Katharhynn Heidelberg

Question: What do you get when you give any politician or authority an inch?

Answer: Two inches of greater latitude for whoever comes after him — until you reach the place where we now find ourselves: miles from the land of civil liberties.

The encroachment, once gradual, has become bold, as leader after leader grabs fistfuls of our rights and tells us it’s for our own good. In recent memory, George W. Bush was by far the worst offender — his watch brought us the PATRIOT Act, black sites, torture (yes, we did), and a detention camp for suspected terrorists in Cuba so as to escape the awkwardness of according them due process. But Bush is not the only offender; of late, the Left’s knight in shining armor and others have taken Bush’s proverbial inch and made it into the proverbial mile.

Last December, President Barack Obama inked into law a defense act that allows for the indefinite detention of U.S. citizens. Washington, D.C., attorneys general chose to continue a 2005 fight over whether police can use a GPS to spy on a suspect without first having a warrant.

The nation’s high court made the right call on the latter. The president utterly failed us on the former. And, state-by-state, your constitutional rights are under assault as officials embrace DNA-collection and drug-testing without probable cause.

• Obama signed the National Defense Authorization Act into law with a caveat — a signing statement — and expressed reservations about it. The signing statement only addresses how his administration will interpret the provisions of NDAA, and, of course, is not nearly enough. The ACLU correctly deemed his signature as a “blight on his legacy,” and also correctly noted that military detention of U.S. citizens is “unconstitutional and illegal.”

The NDAA allows “detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force,” according to Section 1021.

“That is the very definition of ‘indefinite detention,’ and the statute could not be clearer that it vests this power,” said Glen Greenwald, writing for Salon, who also quibbled with interpretations holding that the bill does not apply to U.S. citizens.

Section 1021 does not, he said, but Section 1022 allows the president to order the detention of anyone he deems to be a member, part of or associated force of al-Qaeda, and who he believes has participated in a planned attack or an attack. The section “not only authorizes but requires that they be held ‘in military custody.’ … the definition of who it covers does not exclude U.S citizens or include any requirement of foreignness,” Greenwald said.

Congress responded to the indefinite-detention provision of NDAA with the Due Process Guarantee Act in 2011, which is something, especially since both Democrats and Republicans have signed on as co-sponsors. The response of the American people? Few of us are marching in the streets about it, while most have ceded the inch (and so many more inches) with no regard for the long-term consequences.

• About six years after Antoine Jones was imprisoned based on police GPS surveillance conducted after a warrant had expired, the U.S. Supreme Court in January came back with the only just ruling possible: that D.C. police violated his Fourth Amendment rights.

This seems so obvious, yet despite a refreshingly unanimous ruling, news reports have been chock-full of the “nuances” of the case — because, you see, we live in a digital age. The Washington Post put it this way: The question is how government can use info obtained from high-tech gadgets and systems for surveillance purposes.

Americans disclose a lot of information “in the course of carrying out mundane tasks,” Justice Sonya Sotomayor wrote, while Justice Samuel Alito mentioned travel data kept by toll booths and OnStar technology available for most cars now on the road. He seemed to be of the mind that using GPS for long-term monitoring was the greater issue.

But the issue is really quite simple. If the police want to know what toll road I used, they can get a warrant. If they want to know what phone numbers I’ve called, they can get a warrant. If they want to monitor me through OnStar, they can get a warrant — whether it’s for a second of spying, or years. Of course our Founding Fathers did not envision GPS and other technology! But the essential wisdom that they enshrined in the Constitution is timeless: people shall be secure from prying eyes when those eyes cannot produce a good reason for the spying.

I applaud the high court, but I wish justices would have more emphatically said three simple words: Get a warrant. No slapping GPS devices onto cars without one. No flimsy reasoning about whether the vehicle in question was in a public or publicly accessible place at the time the device was placed on it. Get. A. Warrant.

Another danger of allowing our leaders to run roughshod over our civil liberties is that it encourages lower levels of government to give it a whirl:

• First, state authorities, with a warrant, took your DNA if they had probable cause to believe you had committed a specific crime, or they collected it after felony conviction. Then, in the name of truly unfortunate murder victims, states began passing laws requiring a DNA collection to be taken at the time of a felony arrest.

There’s no real assurance that DNA won’t be profiled and compared to databases before the contributor has been convicted of a felony, even if it’s supposed to just be stored, pending case resolution. (And what happens if there is a “hit”— but the underlying case that allowed DNA to be taken is resolved as a misdemeanor or results in an acquittal? Can the DNA be used as the basis for a new case?) Some states have begun collecting DNA samples when someone is arrested on misdemeanors. What’s next — traffic infractions? You never know — maybe that guy who just ran the stop sign is a serial rapist! We don’t need no stinkin’ probable cause.

Especially repugnant: Requiring welfare beneficiaries to take drug tests. The move is afoot in Colorado, and has been floated in other states. It’s hard to understand what practical purpose such a law could serve. At a minimum, it adds costs to taxpayers who fund welfare programs. In reality, there is no practical purpose.

The requirement is designed to stick it to the people whom the better-offs presume to have “bad habits,” because otherwise, they would not be poor! It asserts ownership over other human beings: “If you want my help feeding yourself, you have to prove you are innocent of a crime to which I cannot tie you.”

Although the technology that would be used is cutting-edge, the idea of drug-testing welfare recipients is straight from the Stone Age. Poor people are entitled to civil liberties, too — that’s why rights are called “inalienable.” The mere fact that people are signing up for the dole does not indicate they have been using illegal drugs, and it should not be sufficient to force them to testify against themselves with their own bodily fluids. Put simply, poverty is not probable cause.

And don’t even start with that “if you’ve nothing to hide, you’ve nothing to fear” codswallop. That isn’t the point. If it were, nobody would object to scrapping the Fourth Amendment altogether.

Other fans of drug-testing welfare recipients seem mightily offended that they themselves have jobs and yet have to take a drug test — so why not the welfare “queens”? But that’s precisely the problem: Drug-testing without probable cause is a violation of a person’s rights, employed or not. (With the exception of professions whose workers are directly responsible for public safety.) People shouldn’t be outraged that welfare recipients don’t have to take drug tests. They should be outraged that their employers can force them to.

When we in fact “lose our country,” it won’t be to “liberal” onslaughts or “conservative” assaults, socialist plots or the like. It will be because we forgot liberty’s price: Eternal vigilance. It will be because we forgot the inch = mile mathematics of government.

Katharhynn Heidelberg writes from Montrose, Colo.