Thursday, January 26, 2006

Good-bye, Privacy and Freedom

by MARK GABRISH CONLAN, Editor, Zenger's Newsmagazine
Copyright © 2006 by Mark Gabrish Conlan for Zenger's Newsmagazine. All rights reserved.

A shorter version of this article appears as the "First Word" editorial in the February 2006 print edition of Zenger's Newsmagazine, to be released January 26, 2006.

“With the development of television, and the technical advance which made it possible to receive and transmit simultaneously on the same instrument, private life came to an end. Every citizen, or at least every citizen important enough to be worth watching, could be kept for 24 hours a day under the eyes of the police and in the sound of official propaganda, with all other channels of information closed. The possibility of enforcing not only complete obedience to the State, but complete uniformity of opinion on all subjects, now existed for the first time.”

— George Orwell, 1984

On January 19, America’s Internet users learned that federal investigators had obtained reams of data from Yahoo, Microsoft and America Online showing how people used these Internet providers’ search engines. “The information turned over to Justice Department lawyers reveals a week’s worth of online queries from millions of Americans — the Internet Age equivalent of eavesdropping on their inner monologues,” Los Angeles Times reporters Joseph Menn and Chris Gaither wrote in the paper’s January 20 issue.

The disclosures came in response to sweeping subpoenas that initially demanded two months’ worth of those records, and as with most of the Bush administration’s innumerable assaults on Americans’ privacy it was done in complete secrecy. We only know about it because the fourth company the feds subpoenaed, Google, refused to comply and instead used their right to challenge the subpoena in the courts.
What’s more, instead of using their usual all-purpose justification for assaults on the privacy rights and civil liberties of Americans — the “war on terrorism” — the administration this time invoked another bugbear they’ve propagandistically conditioned most Americans to hate: pornography. They said they needed this information to defend Congress’s latest statute trying to keep children from accessing porn on the Internet — two previous versions of which have already been struck down by the U.S. Supreme Court as unconstitutional.

The government defended its subpoenas — and AOL, Microsoft and Yahoo defended their acquiescence — by saying they weren’t asking for the names and search records of individual Internet users. But, as Google’s executives said in their letter to the government, “One can envision scenarios where [search engine] queries alone could reveal identifying information.” In other words, tell the government what I search for on the Internet, and the government can work backwards and stand a pretty good chance of figuring out who I am and where I can be found.

Coupled with the recent disclosure that President Bush personally authorized the National Security Agency (NSA) to wiretap U.S. citizens suspected of contact with so-called “terrorists” and flagrantly disregarded the 30-year-old law designed to regulate such spying, the search-engine subpoenas reveal the current U.S. government’s visceral hatred of the right to privacy. Though so far they haven’t gone all the way the way the “Inner Party” of Orwell’s fiction or real-life Eastern European Communist governments did — routinely recording every phone call and spying on “every citizen important enough to be worth watching” — the administration’s clear intent, embodied in the USA PATRIOT Act (under whose authority they issued the subpoenas to Google and its competitors in the first place), is to do just that.

What’s more, the advent of the Internet and the sweeping advances in computer technology that made it possible have made it feasible for the first time to spy on an entire population. Those Eastern European governments that routinely recorded everyone’s phone calls couldn’t possibly have enough people listening to the tapes to nail everybody who said anything against the ruling elite. (Their intent was to scare their people into watching what they said by the possibility that your call might be the one they listened to that day.) But, armed with word-recognition software, a modern repressive government can search every single e-mail and Web query for whatever so-called “key words” they decide are incriminating — from “bomb” (even if you only meant it to describe a particularly bad movie) to “Osama bin Laden” (even if you were researching him for a school paper on 9/11) to the words the Chinese government looks for on its searches of its citizens’ Net use: “freedom” and “democracy.”

The attack on privacy is part and parcel of a broader assault not only on civil liberties but on the entire concept of political freedom. Its aim is nothing less than to make the President of the United States a virtual dictator, no longer constrained by the careful system of checks and balances those old fogies in Philadelphia in 1789 worked out in the Constitution. Few people have critiqued this more eloquently than former vice-president Al Gore, who in 2000 became the second person in U.S. history (after Samuel J. Tilden in 1876) to win a Presidential election and then have the office stolen from him by legal chicanery and judicial activism. On January 16, Gore spoke to the Liberty Coalition in Washington, D.C. and said:

"This administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential power is exactly what our Constitution intended. This legal theory, which its proponents call the theory of the unitary executive but which ought to be more accurately described as the unilateral executive, threatens to expand the president’s powers until the contours of the Constitution that the Framers actually gave us become obliterated beyond all recognition.

"Under this theory, the president’s authority when acting as commander in chief or when making foreign policy cannot be reviewed by the judiciary, cannot be checked by Congress. And President Bush has pushed the implications of this idea to its maximum by continually stressing his role as commander in chief, invoking it as frequently as he can, conflating it with his other roles, both domestic and foreign. And when added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

"This effort to rework America’s carefully balanced constitutional design into a lopsided structure dominated by an all-powerful executive branch, with a subservient Congress and subservient judiciary, is ironically accompanied by an effort by the same administration to rework America’s foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish a form of dominance in the world. And the common denominator seems to be based on an instinct to intimidate and control."

What’s more, the U.S. Senate is about to freeze that theory of the “unitary executive” into constitutional law by confirming one of its principal exponents, federal appeals court judge Samuel Alito, to the U.S. Supreme Court. Once Alito replaces Sandra Day O’Connor on the Court, Bush will have the fifth vote he needs to assert the kind of dictatorial power he has claimed ever since 9/11 to run the “war on terror” exactly as he pleases and put anyone — whether U.S. citizen or foreign national — in prison anywhere in the world for as long as he wants, and order them subjected to any type of treatment, including torture or summary execution, he deems appropriate.

And once 85-year-old Justice John Paul Stevens retires or dies, Bush will have the power to get rid of that other nagging leftover of Americans’ right to privacy that pisses him off: women’s right to reproductive choice. Americans have been arguing about abortion long before Roe v. Wade and they will undoubtedly continue to argue about it long after that decision becomes history — either through an outright overruling or the death by a thousand cuts anti-choice legislators and judges have already largely inflicted on it. But what most of them don’t realize is that the foundation of Roe was a 1965 Supreme Court decision called Griswold v. Connecticut, which creatively used the Bill of Rights and the Fourteenth Amendment to argue that Americans had a constitutionally guaranteed right to personal privacy even though the Constitution never said that in so many words.

Whereas a few state constitutions — including California’s — do specifically guarantee a right to privacy, the U.S. Constitution still does not. A Right-wing Supreme Court packed — as Bush promised to do in 2000 — with clones of Antonin Scalia and Clarence Thomas may well decide that the Griswold Court overreached, and then the personal sexual choices of Americans will become fair game for government enforcement. Lawrence v. Texas, the landmark 2003 decision guaranteeing the right of American adults to have consensual sex in private with whomever they pleased, including partners of their own gender, will be swept into the historical dustbin along with Griswold and Roe.

Orwell’s 1984 seems to be the role model for the Bush administration in more ways than one. Like Orwell’s fictional ruling regime, the Bush administration has declared a war that will last forever and therefore provide a permanent excuse for suppressing civil liberties and human rights. Like Orwell’s dictatorship, Bush’s imposes on its citizens an order that not only represses their sexuality but even dictates to them whether, and on what conditions, they can live or die. Like Orwell’s, Bush’s regime abuses language in ways that make its programs seem like the opposite of what they are: a “healthy forests initiative” that encourages clear-cutting, a “clear skies initiative” that encourages pollution, a “prescription drug benefit” that actually makes it more, not less, expensive for senior citizens to buy the drugs they need to survive, and an “ownership society” that abolishes social safety nets and entrusts individuals’ ability to survive in their later years solely to the stock market and their luck in playing it.

And so far, the American people are supporting their Führer President all the way. A Pew Research Center poll released January 18 showed 48 percent of the respondents saying that “monitoring Americans suspected of terrorism without court permission” was “generally right,” while 47 percent — a statistical tie — thought it was “generally wrong.” Even more frightening, when the same poll asked whether people were more concerned that the government hadn’t done enough to protect the country from terrorism or had gone too far in restricting civil liberties, 46 percent said the government hadn’t done enough and only 33 percent said it had gone too far.
Based on those results, the Republican party’s leadership believes that Bush’s brazen defiance of law in ordering the NSA wiretaps will actually work in their favor politically. “One of the big choices before the American people in 2006 is: Where do your leaders stand on this important tool?,” said Republican National Committee chair Ken Mehlman. He added that he plans “to talk a lot about it this year.”

In 2002 and 2004, the Republicans won the Presidency — rightfully, this time — and increased their majorities in Congress by making the “war on terror” the paramount issue and scaring American voters into thinking the Democrats would be too “soft” to be trusted with running the country and protecting them from terrorism. The Pew poll results suggest that — regardless of the growing unpopularity of the President and Congress on issues like Social Security, Medicare, ethics and the origins of the war in Iraq — the Republicans may be able to do that again.

In the early 1960’s William Shirer, author of The Rise and Fall of the Third Reich, predicted that the U.S. would be the first country in the world to go fascist by free election. More and more, it looks like it already has.