19 June 2013

A series of complaints and grievances

I've been following the various scandals and revelations and developments in our government with a dual experience of almost triumphant "I told you so" moments followed by the enormous disappointment that whomever I told in the first place probably still isn't listening.

As a general rule, libertarians are ignored, at best tolerated, and at worst decried as traitors or heartless bastards and their concerns, even when shared, become publicly as easily dismissed as those of claims for moon landing conspirators. This attitude becomes worse for wear when it appears as though some of these concerns and claims are shared, however rhetorically or for naked political ends, by the major mainstream political figures and the polities that back them. Democrats, in some part due to overreach by the Bush administration and in large part to due to backlash against the Iraq War, had shown promising signs of wanting to push back against the security state and the security theater measures we installed in the panicked days of post 9-11. This was promising enough as a platform that they even nominated an anti-Iraq War constitutional lawyer who had made sympathetic noises about the need for proper due process and oversight for the actions of the executive in the conduct of "keeping America safe", with the notion most clearly expressed that there was no need to trade liberty for security in a false effort.

It was not surprising that not all of this promise was delivered upon. What was surprising is how little, and how much more expansive rather than contracting, the security state has become.

As a general rule, I vote for Presidents on several issues that the general public ignores.
1) Foreign policy. I found Obama's presentation at least preferable to the distasteful overtures of Romney and McCain, but I disagreed strongly with his plans for Afghanistan during the 08 campaign. And subsequent actions in Libya, an apparently haphazardly expanded drone programme in Pakistan and elsewhere, mixed results with Russia and Iran, general failures with Israel (from whatever perspective you want to apply to it), have to be counter-balanced with the death of bin Laden, dealings with Somali pirates, and a partial success in securing offshoring alliances with regional players in East Asia (Myanmar, Japan, Indonesia, Australia, India, Vietnam), helped largely by China's antagonizing postures or existing relationships with many of these nations. In general, the promising but mixed overtones of his election and campaign did not meet up with a) the absurdity of his Nobel Peace Prize award, b) the general Clintonian nature of his foreign policy as an extension of liberal internationalism/hawkishness. This might overall be preferrable to neoconservative hawkishness and the apparent need for endless foreign adventures, conquests and defence funding, but it offered little to assuage my concerns over the endless security state brought on through the war on terror, even if it was now no longer to be called that, and still did only marginal work to remove some of our needless and costly adventures abroad. (Note: I am a realist, not an isolationist. Give me a war worth fighting, and I'll help pay for the bombs and talk strategy and tactics. We haven't had one of those in a while except for the initial incursions into Afghanistan back in 2002, and possibly the First Gulf War. Pretty much everywhere else in my lifetime we've sent rockets, bombs, and troops has been a bloody mess or a waste of effort in my view, and one could go back further still and see pointless waste in Vietnam, potentially Korea, and definitely WW1 in the last century).
2) The protection of civil liberties and the appointment of judges to carry this out. Obama's had all kinds of problems appointing federal judges, and some of that isn't entirely his fault. Republicans have blocked or delayed numerous appointments, but he also hasn't appointed at a rapid enough pace to fill vacancies. Sotomayor on the Supreme Court has mostly been a pleasant surprise in defending criminal rights for trials and detentions to his credit (though she's often been in dissent sadly rather than in the majority), but the overall character of civil liberties as an issue has taken a severe beating over the last decade and has shown limited signs of improving. The government now maintains, expands, or defends powers to a) use drug dog searches as probable cause despite substantial evidence that they are heavily flawed (eg, racist) if not useless, b) stop and frisk people with no probable cause in major cities, c) stop and frisk pretty much anyone getting on an airplane with no probable cause, and to seize a considerable quantity of non-lethal property from those persons, d) deploy deadly force against US citizens abroad without trial or due process, e) prevent people from even getting aboard airplanes with minimal due process f) claim and scan through the records of media companies, credit card companies, and telecommunications companies as to the activities of their consumers and clients, with minimal oversight and a limited due process (that is, that these searches may violate the 4th amendment by the decision of the courts required to oversee them, but we don't know for sure because we can't read the secret decisions of that court), g) places overbroad secrecy claims upon the activities of government agencies and officials, to the point of prosecuting leaks by whistleblowers concerned about the legality or efficacy or cost of such agencies and officials, as treasonous actions of espionage, h) potentially tortures said whistleblowers while in detention. i) detain, interrogate, torture, and force-feed people, even who are declared to pose no threat to national security by our own government, indefinitely with minimal recourse to the judicial system to overturn these determinations, j) seize the DNA of arrested persons without need for a warrant.

I have long tired of the supposition that these are defensible requirements necessary for our safety and well-being. The risk of terrorism in a modern democratic nation-state is very low. This allows public officials to claim reasonably that xyz policies have kept us safe. This is akin to saying that xyz policies keep away evil spirits or giants. And since we haven't seen any evil spirits or giants, then obviously they must be working.

Terrorism is exceptional as a criminal or military tactic. It is exceedingly rare to experience outside of a regional conflict between uneven powers as a deployment of asymmetric warfare. It is reasonable to take steps to make it far less common still in stable environments of far-away nation-states, as the tactics often involve significant loss of life and grief to those who suffer for lost loved ones, substantial debilitating injuries, and significant damage to property and commerce in the disruption of daily life for others, just as other major crimes can do (murder, rape, assault, theft, riots, etc). It could be considered quite foolish to presume that a nation-state should do nothing in the face of such action to respond, investigate, and hopefully deter violent acts of terror and mayhem. But it is equally foolish to accept at face-value the claims of that nation-state and its officials that its tactics and stratagems in response are necessary and effective. If our tactics are ineffective, we are expending valuable effort and money and time upon fruitless endeavours for security in an action of inscrutable theater rather than the transparently fair provision of law and order. If our tactics are unnecessary we may tread upon the private affairs of citizens and residents and the wants of potential allies here or abroad for no purposeful gain. A common libertarian refrain in viewing government policy is to say "We need to do something, this is something, therefore we should do it" is a method used to considerable effect by public officials. The wake of national or local public tragedies is easily exploited to do meaningless symbolic things or, worse, damaging things to our liberties and well-being with no benefit at all to our security, prosperity or happiness as a people. "We" thus advise caution in such moments to ask for careful analysis of what things will be necessary, who will be effected, and what benefits we will all be provided, and if these things do not come to pass, that we reform, and change course to do other things (or even nothing) instead.

There are several common attempts to defend the responses of our authorities and appointed representatives to these problems. Most of these defences are unsuccessful. The most foremost in the wake of the revelations of broad surveillance programmes is that "I have nothing to hide". But there are a number of problems with that yawning response. Significant among them is the false belief that what the government actually uses these powers for is the prevention and detention of terrorists. PATRIOT act powers and NSA wiretaps have been used for anything from counter-terrorism as intended, to essentially entrapment of "terrorism" by the FBI, to anti-drug investigations, to more mundane local criminal activities. It is not sufficient to simply not be a terrorist to not attract undue attention in this way. A second problem is the lack of understanding of how broad and inclusive our criminal codes at the federal, state, and local level have become. All manner of even commonly engaged activity is punishable by law, with often absurdly high maximum penalties of prison terms. All that is required is a petty functionary in public service to view your activities with suspicion or any personally annoyed prosecutor or judge to carry out these penalties upon anyone they wish. What this claim of "I have nothing to hide" really means is: "I have no enemies in power willing to punish me". And we see immediately that the trust belied by this claim will shift when the party in power shifts to suggest that people quickly see (delusionally or accurately or not) that they may indeed have enemies in office willing to punish them for being "liberal" or "conservative" and outspoken in those views through whatever means available to them.

A further problem with the security provisions is the expansion of military power upon the civilian sector. It was common during the aftermath of the Boston Marathon bombing to see military gear clad and equipped Boston PD roaming around. In fairness to the city of Boston, Boston is a large metropolitan area with historical significance easily accessible to various groups who might wish to attack or make a political statement via terrorism, as might be the case in Washington DC or New York or Los Angeles or Chicago or Philadelphia say. It might thus have been reasonable to apportion some funds to that purpose (I do not necessarily agree, but this is at least an argument worth having). But how likely is a similarly low but modest risk to apply to any random town in Alabama or Ohio or Wisconsin or Oregon? And how much funding has been disposed upon those random towns to ostensibly fight terrorism (or more likely, unarmed drug dealers and consumers) and make available heavy equipment, often with minimal training, to local police forces who will have essentially zero risk of terrorism. Is this an effective use of our efforts, to blanket our country with military equipment to chase down terrorist suspects? Likewise, a similar question could apply to the distribution of funds and equipment to other agencies of the federal government, other than our armies and FBI/CIA/Homeland Security style agencies.

Of all the things that developed over the last few weeks, the overbroad surveillance disclosures of data mining by the government, the IRS scandals, the needless involvement into the Syrian conflict, the Supreme Court ruling that police interrogations (of a non-arrest manner) need not require proper Mirandizing, the most disturbing to me was the idea that the government can, upon arrest, compel DNA from a arrested suspect. Supposedly this is to be limited to the most violent actions and suspicions, but we are likely to see this to be a push for a very broad use as an investigative tool by governments and already an arrest is commonly enough an abuse of authority by police to take in people who annoyed or displeased them, failed to comply with "commands", and that there are any number of relatively harmless things that are criminalized and arrest-able (drug possession in many states for example, prostitution, etc). It isn't necessary that people will only be arrested for murder and rape and general mayhem, and it will likely not remain necessary that DNA will only be taken for those arrests. The claims that this is somehow an identification tool are rendered as a challenging argument to make where the processing of DNA still takes weeks and months versus fingerprints or facial recognition of drivers licenses and so on. It already seems a dangerous slope to permit it without a warrant and simply upon arrest even in the case of supposedly dangerous criminals as it would be simple enough to compel DNA as part of any written warrant for arrest in such cases. I have trouble seeing what legal use it has beyond that. It appears it's primary use is not identity, but rather to say, we have this person in custody, let's find out if maybe they are guilty of something. Usually something else, and not the crimes that we have detained them for. This is not a sensible way to investigate individuals for their crimes, even if the investigation of serious crimes (like rape or murder) is a pressing and serious matter worth the investment in DNA testing.
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