On December 1, journalist Radley Balko published a short piece at his Washington Post blog headlined “The age of ‘pre-crime’ has arrived.” In the post, Balko describes how LA County may emulate other cities and begin sending letters home to men whose license plates have merely been scanned in areas where street-walking sex workers have been known to congregate. These license plate readers are bad and potentially dystopian enough, but adding Puritanical shaming to the mix is truly bad policy.
However, Balko’s headline suggests pre-crime has only just arrived. Whether that was the intention or not, the sad truth is that American justice has long involved punishing people before they have committed a crime. This is aptly demonstrated in the PATRIOT Act’s beefing up up of surveillance powers that were already bad enough when focused on a narrower group of suspects. PATRIOT made them broad and powerful, but still easy to accept as just the way things are now. We got used to Gitmo and indefinite detainment, we got used to being spied on.
PATRIOT is strange. People worried about for a few years under George W. Bush, but mostly forgot about its powers between the election of Barack Obama, and the National Security Agency (NSA) revelations courtesy of Edward Snowden in 2013. Now, people might argue that having their data collected is not a punishment. However, neither are those creepy “Dear John” letters. They are just a sign from the powers that be that they are watching. If that doesn’t bother you on principle and on potential chilling effect of speech, what will?
There are other gifts of 9/11 that do a little more than just spy. Some of them, such as the no-fly list, also restrict movements of people who have never been charged or even convicted of a crime.
In 2014, Rahinah Ibrahim managed to get off of the no-fly list ten years after being added to it in error after the Malaysian national was briefly interviewed by the FBI. However, most of the 47,000 people on it lingered there for years not even knowing why they couldn’t fly. Currently, a Turkish-Canadian pilot is in the midst of a legal battle with the US over the fact that he cannot work on any plane that enters US airspace, thanks to his status on the list. The same impossible, secret barrier has hit US citizens – about 800 of whom are on the list – and a few of them consequently got stuck abroad, unable to get home.
Ibrahim’s lawsuit was first blood against the total secrecy of the list. Earlier this year, the government agreed to tell people just why they were on it. Previously, someone would just go to an airport and be blocked from flying. If they asked law enforcement about it, they were not given confirmation or denial that they were on the list. But suspects’ right to due process didn’t magically appear just because after 14 years, they were allowed to be informed that they were on a list and why. The American Civil Liberties Union consequently filed several lawsuits, saying that those reforms wouldn’t cut it. Now it seems that people may be allowed to challenge their status on the list.
The no-fly list, by the way, is not the same as the terrorist watchlist. There are at least 680,000 names on that list, and according to the ACLU at least “280,000 of them have no affiliation with a recognized terrorist group.”
Similar in opacity is a National Security Letter. These could be used since 1986, but only against potential spies and foreign agents. USA PATRIOT said they could be used against anyone deemed suspicious, and they were consequently used with great enthusiasm. Between 2003 and 2006 alone 193,000 of them were issued (mostly by the FBI), with 300,000 in the last decade. In the case of an NSL, the recipient – an Internet Service Provider (ISP), bank, doctor, or other enterprise with customer records – is told about it, but is forbidden from sharing the fact of the letter with anyone else. The only thing needed is for a federal agent to proclaim the information is necessary for his or her investigation. No warrant (thanks in part to third party doctrine), yet law enforcement can acquire web surfing data, purchases, and the ISP addresses of everyone that the target has communicated with.
Transparency, privacy, and civil liberties advocates have been fighting NSLs for years. Small strides have been made, but the muscle behind them remains there. (This lead to the existence of workarounds just as warrant canaries, which generally just involve a website posting something like “The FBI has not been here” and then removing it if law enforcement actually comes knocking.)
Section 215 of the PATRIOT Act also makes an investigation against an individual – sans warrant – come easy. It was also part of the justification for the NSA’s dragnet spying.
On November 30 a judge ruled on the case of a man named Nick Merrill who was president of an Internet company that received an NSL about a customer back in 2004. Merrill fought for 11 years not to give up that information (the FBI eventually dropped it), and to be able to share the fact that he had received the request at all. The ACLU backed him in a fight that did lead to reforms of the NSL law. A month ago, the judge removed the gag order entirely and Merrill was allowed to reveal exactly what the FBI had demanded in the NSL. It’s a small victory for transparency, but a satisfying – albeit time-consuming – one.
Small progress is always made, but these new powers never do go away (or, as in the case of NSA spying reform, there is no clarity on what will still be legal, and how many legal loopholes will remain for the government). This slog is what writer Robert Higgs dubbed “the ratchet effect.” A crisis like 9/11 brought in a cascade of new laws and new powers, eventually a few were challenged and scaled back, but things never go back to the way they were before.
Frequently, in a special kind of compartmentalizing, these new (or newly easy) powers are justified by terrorism, but used for drug investigations and other banal law enforcement endeavors. But terrorist attacks like Paris and now San Bernardino, CA will do wonders to justify continued secret spying here, and bombing abroad. In order to fight terror, we are willing to violate the rights of Americans and foreigners with ease and without trial. If they are lucky – or if someone leaks, or if a judge feels particularly constitutional that day – they will at least be told it is happening.
Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.
