Vanishing Liberties

by , August 20, 2009

If the seemingly unending wars in Iraq and Afghanistan ever do come to a close and a new war with Iran, Somalia, or Sudan can somehow be avoided, the most serious long term damage from the conflicts will be to the fundamental freedoms that Americans have cherished for more than two hundred years.  The erosion of America’s liberties has been driven by fear of terrorism but it is enabled by leaps in technology coupled with new legislation and a police state mentality that have made every citizen a target.  Hate crimes and laws targeting the internet provide a framework that relies on advanced monitoring technology to criminalize behavior that would have been considered off limits for privacy reasons ten years ago. 

The National Security Agency can monitor every phone call made in the United States and quite likely every e-mail.  European security agencies have the same capabilities and have gone far down the road of legitimizing state intrusion into private activities, limiting free speech and free association.  In Britain, most cities and highways are now monitored by CCTV cameras and the police have begun to use aerial drones to observe and record demonstrations of groups considered to be extreme including the right wing British National Party.  New legislation in Germany will require all internet users to be licensed with a backtracking feature that will enable the government to determine where any internet transmission originated.  The new regulations will require all users to have a tamper proof internet ID and will be enforced by special police.  All telecommunications data, to include both internet and telephone, is already retained by the German service providers for six months, a law that has been in effect since 2008.  The government can obtain the stored information by court order.  It is particularly interesting to note what German politicians and officials said in support of the new legislation.  One commented that it is necessary to stop the internet from becoming a "lawless chaos room."  Another described the internet as a "source of criminality, terrorism, and much similar filth."  Yet another said "What is illegal offline is also illegal online."

Countries like China and Iran already control the servers for internet as well as the cell phone centers in their country and have not been shy about shutting down communications.  In many places in Europe internet services are often screened by software that blocks certain websites and the use of words or phrases that are considered objectionable.  This screening is also becoming common in hotels and other public places that offer internet services in the United States.  But what is really dangerous is the combination of technologies that make it possible to control the internet with legislation that gives the authorities the ability to go after users who are deemed to be breaking the law, such as is happening in Germany. 

Can there be any doubt that the monitoring of the internet to control "terrorism" and "filth" will in fairly short order also be used to repress the viewpoints of individuals and groups that are considered to be politically unacceptable?  And what better weapon to use against dissidents than the criminal justice system, most particularly the hate crime legislation that is becoming both increasingly more common and more draconian in both the United States and in Europe?  Hate crimes are the antithesis of the old principles that there is "equal justice under law" and that "justice is blind."  They essentially create specially protected classes of people within the criminal justice system, permitting selective enforcement of the law.  Normally when there is an crime, the police investigate and make an arrest and the judiciary prosecutes.  The perpetrator is punished in a manner proportionate to the seriousness of the offense.  But if an incident is deemed a hate crime, i.e. that it may have been motivated by prejudice or bigotry, the penalties are harsher and the federal government has the option of trying the suspect if the state court for some reason fails to convict.  Senate Majority Leader Harry Reid justified the dismantling of two thousand years of jurisprudence recently, saying ""There is a difference between assaulting someone to steal his money or doing so because he is gay, or disabled, or Latino or Muslim."  Reid’s interesting interpretation notwithstanding, many would argue that hate crimes create an unconstitutional special tier of justice while the ability to try someone twice constitutes double jeopardy. 

Hate crimes in Europe, Canada, and Australia include speech.  It is illegal to criticize any ethnic or religious group, homosexuals, the disabled, gypsies, or the elderly.  The European Union even defines anti-Semitism, including in its definition any criticism alleging that Jews might be more loyal to Israel than to their own country of residence.  An Australian professor who wrote a letter criticizing large scale immigration from Africa because it would bring an increase in crime and social problems was summoned before the Australian Human Rights and Equal Opportunity Commission and charged with a hate crime.  Another Australian was arrested and charged when he wrote a letter complaining that the numerous Israeli art students selling their wares in Perth might be engaged in espionage.  In Canada, the Canadian Jewish Congress complained that demonstrators criticizing of Israel’s invasion of Gaza "demonized Jews and Israelis" and demanded an investigation by the Canadian Human Rights Commission.  Hate crimes in many countries punish not only one’s actions, but also one’s motives and even one’s thoughts, if they can be demonstrated to the satisfaction of a judge or prosecutor.

America’s new HR 1913 "Local Law Enforcement Hate Crimes Act" together with Senate bill S-909 claim only to prohibit actual crimes and not regulate free speech, but it isn’t necessarily so. The Senate bill specifically includes "conspiracy to commit a hate crime" as a criminal offense.  The legislation is drawn so loosely that a district attorney can proceed in virtually any case where there is even a suspicion that something hateful might have motivated the perpetrator.  How some activist judges will exploit the lack of any strict guidelines can easily be imagined.  Membership in groups that have what are regarded as extremist policies has been ruled to be enough to bring a prosecution.  And sometimes not even that "extremist."  A Pennsylvania hate crime prosecution involved Christians who protested a homosexual gathering by carrying signs and singing hymns.    They were charged with felonies.

As should be obvious, free speech on certain issues will quickly run headlong into the hate laws, and not surprisingly, the side that can hire the lawyers to make its case will likely win, First Amendment be damned. The Anti-Defamation League, which has been a strong supporter of all hate crime legislation, has made it clear that it considers criticism of Israel to be anti-Semitism and therefore a hate crime.  Some leading supporters of the laws have also explicitly included any opposition to Zionism, which they equate to denying Israel’s right to exist, and any comparison of Israeli behavior with Nazi Germany. Pro-Israeli groups have been extremely active in promoting hate crime legislation because of their belief that such laws can be used to mitigate criticism of Israel, but the real issue is that the conjunction of hate legislation and the technical ability to regulate the mechanisms of dissent like the internet are creating a new dynamic in which many groups and even governments will be able to exploit the legal system to shield themselves from criticism.

So welcome to the new world order.  In five years, all internet will likely be monitored and regulated, following the German model.  Hate crime legislation will make it illegal to criticize any group or country if it can plausibly or even implausibly be construed that such criticism reflects bias, permitting judges to silence anyone who opposes the status quo.  Together, the technology and the new laws will quite possibly put the websites that readers of Antiwar.com peruse daily out of business.

Read more by Philip Giraldi