4. Troubling Times

The last several months have brought several developments that many Americans, myself included, find very troubling with respect to the nature and future of our democracy:

1. Enemy Combatant Designation -- The Bush Administration has been challenged in court for its several-year-old policy claiming that the President has the right to designate individuals, including U.S. Citizens, as enemy combatants. The policy claims that enemy combatants do not have the right to legal representation or counsel and do not have the right to sue in normal federal courts. The policy also claims that the government does not have to even reveal the identity of enemy combatants should the President deem this necessary for national security.

2. Rendition -- The practice of removing individuals, whether they be suspected terrorists, enemy combatants, or another undesirable classification, from U.S. territory or government custody to foreign allied nations, presumedly for the purposes of avoiding legal and constitutional restraints on U.S. law enforcement and intelligence personnel.

3. Secret Prisons -- The U.S. has faced recent allegations of creating and maintaining top secret covert detention facilities in several Eastern European nations, presumedly for the purposes of secretly detaining individuals for whom the status of enemy combatant is not secret enough.

4. Torture -- While the Pentagon and Bush Administration have emphatically characterized that any acts of torture or other inappropriate behavior that may or may not have happened at the Abu Ghriab Prison in Iraq or the detention facilities at Guantanamo Bay are isolated incidents and do not reflect policy or even normal procedure among military or intelligence personnel, Vice President Dick Cheney has also emphatically opposed legislation proposed by Republican Senator John McCain (a former Vietnam POW) that would make torture by U.S. personnel of others in any situation subject to criminal penalties. This clearly gives the world mixed messages as to whether the United States tortures its POWs or enemy combatants or not and whether it really considers torture acceptable under some circumstances.

5. NSA electronic surveilance of U.S. Citizens -- The New York Times, after sitting on the story for a year at the request of the White House, revealed that the President had authorized surveilance of international phone calls by Americans to individuals overseas. This policy circumvented the FISA (Foreign Intelligence Surveilance Act) Courts, which were established after the Nixon Administration to give the intelligence community a way to have wiretaps secretly reviewed and approved by a neutral court with high-level security clearance. This new surveilance program, which had been re-authorized by the President about 30 times, did not seek any warrant or FISA approval. This would appear to be a prima facie violation of the U.S. Constitution, but the White House has insisted that it is both legal and an important tool in the fight against terror. Later, the FBI revealed that this policy had flooded it with NSA wiretap request on thousands and thousands of phone numbers, the vast majority of which were useless deadends.

6. It was reported today that the U.S. Justice Department is suing Google to obtain pretty much all of its records of everyone's internet searches. Unbenownst to most Americans, Google and Yahoo and other search engines routinely keep track of what we all do internet searches for, in part as a means to tailor web-based advertising to us. Now that ability may result in our internet seach habits being collected by the government for the nominal purpose of investigating how people search for child pornography. Of course, there is nothing to prevent that information from being archived and mined to find out other things about internet users.

7. My new favorite--since it directly affects me: The Missouri Department of Transportation will spend $3 million annually on a program to monitor the movements of individuals on highways via their cell phones -- without their knowledge or consent. Supposedly, this will be used to track traffic patterns to see where the State needs more lanes, more bridges, or to sense traffic jams, etc. But with this comes the power, theoretically, to identify individuals who are speeding or even track down a wanted individual who is careless enough to leave their cell phone on while driving... which is everybody here.

So why do I and so many Americans, Democrats and Republicans, find these developments troubling?

To be clear, I definitely do not oppose the government to using powerful investigative motives to combat terrorists, drug traffickers, and other bad ass evildoers. But how far is too far? As an attorney who has represented clients in federal criminal cases, I can tell you that the government has amazing access to a great deal of information once it obtains a warrant to do so. It's creepy. Every debit and credit card transaction, car rental (including your mileage), ATM withdraws, and telephone and cell phone records. Of course, I learned in our Criminal Procedure class at law school that communication devices which broadcast your conversations to "the world", i.e. cell phones and wireless handset telephones, do not need a warrant, because the courts consider this a lowered expectation of privacy. I was actually stunned at the amount of evidence that they were able to collect on a defendant. And when they suspect an individual of drug trafficking or other really bad things, I have no problem with them going to a judge, showing probable cause, and getting a warrant for all kinds of things.

However, the developments mentioned above reveal a disturbing trend: Government acting without constitutional checks and balances to investigate and surveil individuals and U.S. Citizens whenever the government believes it should do so. The argument for these measures is compelling: After 9/11, everything changed. We are now fighting in a "different kind of war."

However, for two centuries, we depended on the wisdom of the Framers of the Constitution that there should be a separation of power and a series of checks and balances that would ultimately keep any of the three branches from obtaining too much power. To protect against king-like tyranny, there are serious limits to what our President and the Executive Branch can and cannot do. To protect against Mob Rule or complete populism, Congress was given the power to make laws, but not the final word on legality or even wisdom of those laws--the President has veto power and the Supreme Court has the power of judicial review, i.e. the power to find a law unconsitutional. Congress can impeach either a president or Supreme Court justice for breaking the law and betraying the Constitution. These checks and balances have always been considered the genius of our system.

With regard to the "enemy combatant" designation. The Constitution gives us the right to Due Process whenever Life or Liberty is at risk. So, the power of government to prosecute crimes is checked by the rights of the accused to have a fair trial and neutral decisionmaker, and the right to legal counsel. My job, as legal counsel, is not to "get the guy off" but rather to make the government prove its case. It is the government that must prove a case against a defendant beyond a reasonable doubt with evidence legally obtained under the constitution. If we allow anybody in government to simply skip this process and jail someone indefinitely without having to show any proof of wrongdoing and without giving the accused due process or access to legal counsel, this becomes dangerous for everybody. If the government can do this to a guilty guy, it can and will do it to an innocent guy.

This isn't to say everyone in the government is evil. Of course not. Sometimes the cops are bad and are profiling my clients, but sometimes cops--even good cops--are just mistaken. Sometimes the cops are doing everything right, but the witnesses they rely on are wrong or are bad. Sometimes cops make mistakes. And long long ago, Americans decided that if they simply trusted everything every employee or representative of the government said or did, that innocent people might go to jail or be put to death while guilty people went free. If the President is allowed to keep his power to designate any U.S. Citizen as an "enemy combatant," we will begin to descend a very slippery slope to a Police State.

Which leads me back to the troubling developments of the last several months. Certainly the threat of another 9/11-type attack is real. Certainly our government has the responsibility and duty to protect us against such attacks. But how far is too far in executing that responsibility?

We were originally told that the terrorists attacked us because they hate our freedom. We know now that Osama Bin Laden has really never indicated that the driving force behind Al Qaeda is our freedoms -- political, cultural, or religious. Bin Laden and every other Islamic terrorist organization complain about U.S. foreign policy. Still, the idea that another 9/11-type attack would curtail our freedoms is a strong and ongoing sentiment in our nation.

But how exactly has our freedoms retreated since 9/11? At the request of our government, we are happy to give up the freedom of taking knives and weapons on planes--that's very reasonable and really not much of a sacrifice. But are we willing to give up our freedom from unreasonable search and seizure? Are we willing to give up Due Process rights if we are accused of a crime? Are we willing to give up all semblance of privacy, even if we know we are not doing anything wrong? We are told that these desparate times require these desparate measures, that this is a new kind of war that requires new tactics. But is there a point, is there a line beyond which we can say that the cost to our freedom is not worth the gain to our security? Is the freedom for which we have fought and died over two centuries simply to be given up because the government asks us nicely? Will the freedoms we once feared to lose from an invasion of the Soviet Union actually be lost gradually under the guise of patriotism and security? In seeking to save our paradise of democracy, at what point do we actually begin to destroy it?

The men and women in uniform overseas, wherever they are stationed, have volunteered to be there and to risk their lives to protect our freedom. They know they run a risk of dying, but they believe the risk is worth it to protect the freedoms and liberties that make America worth defending. Are they the only Americans willing to risk their lives for these freedoms? I don't want another 9/11 to happen, nobody does, just as almost no soldier wants to die on the battlefield. But perhaps I am willing to risk death to protect these freedoms--freedom from having my entire life monitored and catalogued by the government.

Maybe, just maybe, we are beginning to reach the point where our love of freedom outweighs our desire to be safe from every risk of another attack. Is this unpatriotic? If we can never stop every threat to America, and if this War Against Terror is to last for a generation, perhaps we are coming to the point where Americans must simply decide: Freedom or security?