Our recent peek at the surveillance state has many people understandably freaked out. Some want to blame Obama. Some recall much of this seems to have started with Bush, but to pin this on either of them is to misunderstand history.
As Kevin Drum put it in Mother Jones, in terms of intelligence and civil liberties, Obama’s second term isn’t the fourth term of the Bush presidency, it’s the 16th term of the Eisenhower administration because the roots of the modern surveillance state go back much further than 9/11. One could write a large book about those roots.
I’d like to focus on one strain: the war on drugs which occasioned a shredding of the fourth amendment that fundamentally changed the way government can interact with citizens and the amount of privacy they can expect even if they don’t create probable cause.
In moments of emergency and war, citizens will allow government to have more power over them than they will in times of peace. The war on drugs was a permanent war against a frightening enemy that seemed likely to wreck the core of American society.
So the Supreme Court expanded the government’s powers so broadly that law review articles have been titled “The incredibly shrinking fourth amendment,” and “The court that devoured the fourth amendment.” Toward the end of his life Supreme Court Justice Thurgood Marshall reminded his fellow justices that there is no drug exception in the Constitution. But there might as well be one because instead of privacy and protection against unreasonable search and seizure and no warrants issued without probable cause, we have a world where some of our citizens live in something like a police state where they can be stopped and frisked for not probable cause but something called a furtive movement, which can be anything.
We have courts that have okay’ed putting a GPS tracking device on a car without probable cause and search warrants based on anonymous informant tips and helicopter surveillance of homes without a warrant. The Big Brother state has been alive and well in the drug war for decades, a world where, as The Wire creator David Simon blogged this week, the government has used court orders to cull dialed numbers from thousands of calls to and from certain pay phones. Sounds like what the NSA is doing because now. Along with a drug exception to the Bill of Rights we have a terror exception which affects us all. But these authoritarian abuses were acceptable to most when it was the drug war largely because of who they were happening to.
Now it appears some of this is happening to all of us, but the fourth amendment has been eviscerated–so even if you think it’s discomforting, it’s not illegal. And thus it may be too late. It reminds me of that famous poem, which I’ll remix a little. First they came for the communists and I didn’t speak out because I wasn’t a communist. Then they came for the black men in drug-riddled areas and I didn’t speak out because I wasn’t one of them. And when they came for my metadata there was no one left to speak for me.
The war on drugs was a war on the rights of all of us that we see manifested in many other ways. As one federal judge said, “It may profit us very little to win the war on drugs if in the process we lose our soul.” I wonder if we already have.