“They are over there fighting for our freedom.”
This has evolved into one of those knee-jerk statements people parrot without question.
But honestly, I do question the premise, at least in some cases. I find it difficult to fathom how soldiers fighting and dying to oust Saddam Hussein, or U.S. pilots blowing up stuff to remove Muammar Gaddafi from power actually advanced my freedom as an American.
But let’s consider the idea on its own merit. Let’s assume that American soldiers, Marines and airmen actually fight for our freedom. If we accept that notion, shouldn’t we evaluate mission success by that criterion? Shouldn’t we ask the question: has the so-called War on Terror actually made us freer?
In general, war increases government power at the expense of freedom. And when we look back over more than a decade of war, we find the destruction of liberty in America came about at a much faster pace than the destruction of al Qaeda.
Endless war does not make us free. It moves us in the exact opposite direction.
War breeds fear. And fear leads people to accept policies and restrictions on their freedom they would never accept otherwise. War hysteria, combined with hyper-patriotism, creates an “anything goes to beat the enemy” mentality.
During WWI, Randolph Bourne wrote a powerful essay. He argued that “war is the health of the state.” It’s like a GNC store for government, filled with powders, pills and elixirs guaranteed to beef up state power – at your expense. But in the midst of war hysteria, the people embrace the strongman, forgetting the benevolent uncle can turn into an abusive tyrant at the drop of his star-studded top-hat.
There is, of course, in the feeling toward the State a large element of pure filial mysticism. The sense of insecurity, the desire for protection, sends one’s desire back to the father and mother, with whom is associated the earliest feelings of protection. It is not for nothing that one’s State is still thought of as Father or Motherland, that one’s relation toward it is conceived in terms of family affection. The war has shown that nowhere under the shock of danger have these primitive childlike attitudes failed to assert themselves again, as much in this country as anywhere. If we have not the intense Father-sense of the German who worships his Vaterland, at least in Uncle Sam we have a symbol of protecting, kindly authority, and in the many Mother-posters of the Red Cross, we see how easily in the more tender functions of war service, the ruling organization is conceived in family terms. A people at war have become in the most literal sense obedient, respectful, trustful children again, full of that naïve faith in the all-wisdom and all-power of the adult who takes care of them, imposes his mild but necessary rule upon them and in whom they lose their responsibility and anxieties. In this recrudescence of the child, there is great comfort, and a certain influx of power. –
This sudden embrace of the state leads to a rejection of Benjamin Franklin’s wise advice: don’t trade liberty for security. For our willingness to allow the government to “protect us” ultimately leads to tyranny. James Madison warned of this in a speech to the Philadelphia Convention.
In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of War, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.
Madison later wrote, “No nation could preserve its freedom in the midst of continual warfare.”
Looking back over more than 10 years fighting the War on Terror, it becomes clear that this conflict will not go down in the history books as an exception to the norm. We’ve seen massive growth of government power and the accompanying loss of liberty.
Looking at four developments in the aftermath of 9/11 demonstrates the truth: Americans have become less free.
The Patriot Act
Just 45 days after the September 11 attacks, Congress passed the Patriot Act. It sailed through with little debate and less opposition. In essence, the act made many “rules” for overseas intelligence work applicable domestically. It expanded federal authority to search without warrants, broadened wire-tapping powers and generally loosened restrictions on law enforcement agencies. Under Patriot Act rules, federal authorities have wider latitude to work, with less judicial oversight and little transparency.
The left went apoplectic, accusing Pres. George W. Bush of “shredding the Constitution.” They were right. Elements of the Patriot Act trample Fourth Amendment restrictions on federal power. Makes you wonder what happened to these folks after the elections of Pres. Barack Obama. He continues the shredding. But I digress.
Here’s the dirty little secret: the Patriot Act featured a laundry list of powers law enforcement coveted for years, mostly for use in the War on Drugs. The law enforcement lobby proposed many provisions long before 9/11, but in a peacetime political climate, civil liberties concerns prevailed. War hysteria paved the way for passage.
For example, section 505 of the Patriot Act relaxed certification requirements for issuing National Security Letters. These are basically search warrants created by the FBI or other federal law enforcement agencies. With an NSL in hand, an FBI agent can demand banking, phone records or other information about an individual from a third party with no actual warrant. The relaxed Patriot Act standards allow issuance upon showing that the information sought is “relevant” to an authorized investigation to protect against international terrorism, rather than requiring specific and articulable facts that the information sought pertain to an agent of a foreign power.
Who approves an NSL?
“The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director”
Between 2003 and 2006 the FBI issued 192,499 NSLs.
How many terror-related convictions did the feds get from all of these self-issued search warrants?
The Patriot Act also loosened the requirement for “sneak and peek” warrants. They do not require immediate disclosure of the search to the individual under investigation. Sneak-and-peek warrants allow law enforcement officers to enter a home or office, look around and leave. Agents can’t seize anything, but they can use information gathered to show probable cause for a conventional warrant. Sneak-and-peek is not limited to “terrorism” investigations, but applies to all federal crimes, including misdemeanors. In fiscal year 2008, federal courts issued 763 sneak-and peak-warrants. Only three were for terrorism cases. Sixty-five percent were used in drug investigations.
Federal agents groping our genitals at the airport reminds us of the loss of freedom in the wake of 9/11 in a very intimate way.
When created in November 2001, the aim was to standardize security and provide a more “professional” airport screening force. In fact, many of the new pros were simply the old “amateurs” wearing fancy new federal uniforms and earning fatter paychecks. The agency quickly began making up rules as it went. For a while, the TSA banned lighters; perhaps afraid terrorists might disobey the no-smoking regulations? Then they decided fingernail clippers featuring files represented a grave security threat. Agents even threw pilots’ nail clippers in the trash bin, as if the man or woman flying the plane needed a pointy nail file to crash the aircraft into a building. After the infamous shoe-bomber incident, the TSA forced us all to stand in line in our socks. I suppose we should be thankful they didn’t concoct a similar policy after the “underwear bomber.”
Like every federal agency, once established, the TSA grew as if on steroids. In its first year, the TSA budget stood at a modest $1.3 billion. The 2012 budget called on the agency to spend some $8.1 billion. Today the agency employs nearly 60,000 people.
And we don’t just find these blue-shirted thugs in our airports. We run into them at bus stops and train stations. We even find TSA VIPR teams roaming America’s highways and NFL football stadiums.
More than a decade after 9/11, Congress continues to expand its war powers. In 2012, the National Defense Authorization act included provisions allowing indefinite detention of people on U.S. soil without due process. In essence, the federal government now claims the power to kidnap people right here in America. Vague language in the NDAA makes it difficult to determine just who the feds can detain. U.S. District Judge Katherine Forrest ruled one section unconstitutional for that very reason.
The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2), she wrote. “The statute’s vagueness falls short of what due process requires.
The Obama administration continues to fight for its kidnapping powers.
The president of the United States executes people using drones. The president of the United States maintains a kill-list. No trial. No judicial oversight. No legal parameters. This alone should send chills down any American’s spine.
But today we find the drone threat growing right here in America.
At this stage in the ‘drone game,’ the feds are working hard behind the scenes to get states to operate drones for them. In fact, the federal government serves as the primary engine behind the expansion of drone surveillance carried out by state and local law enforcement agencies. The Department of Homeland Security issues large grants to local governments so those agencies can purchase drones. The goal? Fund a drone network across the country and place the operational burden on the states. Once it creates surveillance web, DHS can step in with requests for ‘information sharing.’
The rapidly advancing technology creates a tremendous potential for drone privacy violations. The British already operate a drone called the Black Hornet. It measures just eight inches long and easily blends into the background. With the press of a button, the operator can zoom silently onto a target, and the hum from Black Hornet’s rotors remains barely audible even from a distance of a few yards.
“It can zoom right up to somebody’s face and hold that frame for as long as is required without them even knowing it’s there. It makes it possible to identify a high-value target,” one British soldier said.
Imagine your local police department flying one of these tiny drones into your home. Right now, virtually no regulation of drone use exists.
Make it stop
Madison warned us that perpetual war would lead to an erosion of liberty, and a look back over the last decade proves him prophetic. The U.S. government took the opportunity afforded by the War on Terror to vastly expand its power. And we find our most basic freedoms and liberties squeezed in a vice of wartime policies and agencies.
So what do we do?
Once governments seize power, they rarely, if ever, relinquish it. We tried begging Congress to repeal these wartime acts. Instead it extended them. We expressed outrage at drone executions. The president justified them. We counted on the courts to protect us. Occasionally they come through, but the administration inevitably appeals, and the federal employees we call judges always eventually seem to side with expanded powers.
We can’t expect D.C. to give up its new-found power on its own. Begging, pleading and protesting won’t help. We must take action.
Work through our state and local governments to block these Constitution violating acts. Simply getting state and local government to refuse cooperation with federal overreaches of power will go a long way toward neutering the feds.
Fact: feds rely on state and local cooperation.
Imagine if the FBI shows up to indefinitely detain somebody in your town and nobody at the state or local level lifts a finger. No local law enforcement support. No use of state or local jails, or other facilities. No use of state and local resources at all. Zero cooperation.
We’re beginning to see this movement developing across America. Virginia led the way, passing a bill refusing compliance with NDAA detention in 2012. This year, nearly two dozen states have similar bills pending, and several will likely become law. Countless counties and municipalities have passed resolutions condemning federal kidnapping. More than half of the states in the Union have bills pending that would place restrictions on drone use. If states refuse to deploy drones, the DHS will have no information to share. States lawmakers are also looking at legislation that would stop the most intrusive TSA pat-downs.
James Madison laid out the blueprint in Federalist 46, before the Constitution was ever ratified. The states must check federal power.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
For more information on how state and local governments can nullify unconstitutional acts, click HERE.
Then, get to work!
Latest posts by Mike Maharrey (see all)
- The General Welfare Clause is not about writing checks - August 28, 2014
- Who Decides Constitutionality? - August 22, 2014
- Understanding Federal Supremacy - July 31, 2014