Leading neoconservative Richard Perle has said that one of the many reasons he admires the Israelis is the moral clarity that they exhibit on the issue of terrorism. What exactly that means is not itself clear, but it would appear to be a carte blanche for any and all Israeli punitive responses to groups that question Tel Aviv’s legitimacy. Perle has never criticized Israelis for disproportionality or for committing war crimes. He has only admonished them when, in his opinion, they have not gone far enough.
By that standard, the past 10 years have seen a major victory for Perle and for those who think like he does by delivering moral clarity to the people of the United States. The Global War on Terror has undeniably simplified thinking about serious issues. As President George W. Bush put it, you are either with us or against us, which means that you either support legislation passed by Congress to catch bad guys or you are a terrorist sympathizer and should yourself be put in jail. That is the meaning of the laws criminalizing terrorist support, which stretch and transform the definition to such an extent that expressing a viewpoint favorable to a group that the United States government has defined as terrorist can land someone in court. Even providing medical assistance to someone in an area controlled by a terrorist group or advising a terrorist leader that he should stop killing people can result in criminal charges.
But even Americans who understand the serious consequences of the legislation that diminishes liberties don’t always appreciate the extent to which the change in the legal landscape driven by fear of terrorism has also led to a proliferation of mechanisms in the state security apparatus that are being used to diminish the freedoms of each and every American citizen. If the federal government wants to know more about you, it has all the tools readily available because information is being collected on citizens every day, while computer capacity and speed are now capable of storing and analyzing everything that comes in.
Few Americans are aware of the threat posed by the greatly increased law enforcement use of GPS to carry out searches that once would have been considered illegal without a court order. To cite one recent example, in October 2010 a mechanic servicing a car owned by a student in California discovered what appeared to be a transmitter, possibly connected to a GPS tracking device, attached by two magnets to the vehicle’s wheel well. The student posted a picture of the device on the Internet to try to learn what exactly it was. Soon thereafter he was pulled over by two hostile federal agents wearing bulletproof vests who demanded the return of “government property.” The student, an Arab-American, had no criminal record, was born in the United States, and was not linked to any radical organizations. The GPS was attached to his vehicle without any search warrant and without any allegation that a crime either had been or was about to be committed.
Currently federal, state, or local law enforcement can attach a GPS unit to a vehicle in any “public space,” i.e., a parking lot or the street, without any judicial authority because, in their view, no one should have any expectation of privacy outside of his or her home. As a result, the use of geolocation systems by law enforcement is becoming increasingly common, largely because it is a resource multiplier. Instead of a surveillance team of four to six officers having to follow a suspect around, it is possible to attach a GPS unit to the suspect’s vehicle and monitor his movements through a computer back in the office. And, since it is so easy and cheap to do, the police are doing a lot of it, including in many cases for obvious fishing expeditions where a surveillance would not normally be authorized because of lack of any probable cause.
The government claims that it has no numbers on how many GPS units have been deployed by federal law enforcement, which suggests that the use is widespread and completely unregulated. But the use of such devices has become so common that Sens. Ron Wyden and Mark Udall have raised questions regarding the extent to which such technologies are being used against American citizens when there is no suggestion of any actual wrongdoing. Because the program is both secret and classified, the senators have been unable to reveal what they know explicitly, but they have suggested that there is a massive unacknowledged program operating under the auspices of the PATRIOT Act that enables the government to collect whole categories of cellphone data, which can be used to geolocate, without any oversight.
When there is a legal challenge, the courts generally go along with the police arguments and support the technical monitoring, though defense attorneys have questioned whether prolonged use of a GPS unit might violate the Fourth Amendment’s “right of the people to be secure in their persons, houses papers and effects, against unreasonable searches and seizures.” In their view, collecting a large mass of information changes the quality of what is being obtained because it provides a full picture of an individual and what he or she has been doing, and this massive invasion of privacy takes place without any judicial or regulatory oversight. A month of GPS reporting, far from being just another acceptable investigative tool, could easily reveal nearly every movement made by a person outside his or her own home.
Generally speaking, a person’s home and telephone have been regarded as off limits to technical intrusion without a warrant, but recent court rulings suggest that even what you think to be your personal space or property is not necessarily safe. In a related GPS case, a court in California ruled that law enforcement’s attaching a tracking device to a vehicle parked in a driveway outside one’s house does not require a warrant because a driveway, like a parking lot or a city street, is also considered to be a public space that anyone can walk or drive into. In several Michigan cases, the authority to invade privacy through technical means was also expanded. When police asked suspects to hand over their cellphones during routine traffic stops and the owners complied, the officers involved construed that as being consent to have the phone searched and used an extraction device to copy the call histories and text messages.
Phones are increasingly serving as tracking devices. Cellphones send out their messages to transmission towers that in return ping all active phones in their area at regular intervals. As the towers cover an area from several directions, it is easy to triangulate and locate a phone and the phone’s owner. A German parliamentarian became curious about the extent to which his travels were being recorded and discovered that he had been located by the cellphone carrier no less than 35,831 times, and all of the information was recorded and retained.
All of this means that the government now believes that it has the right to know where you are 24/7. Further, it thinks that it can exercise that right without any recourse to the courts and without any probable cause. President Barack Obama, who called for greater transparency and accountability in government when he was running for office, now supports the right of his administration to invade the privacy of every American without any due process at all. It is perhaps not a stretch to speculate how this technological invasion of the United States is blowback from the wars in Iraq and Afghanistan, where biometrics, tracking devices, and other features of population control and electronic warfare have been tested and improved. Certainly the willingness of the American public to accept systematic invasions of privacy is a tribute to the selling of the narrative about the Global War on Terror as a rational response to an existential threat. Perhaps it is time to start offering a different narrative, one without Richard Perle’s moral clarity, that sees a bit of nuance and accepts that constitutional liberties must be preserved even in times of perpetual and global warfare. Especially in such times. Ironically, the only war that the Obama administration is winning at the moment is the one against the American people.
