Popular Erosion Of Liberty: Do You Feel Lucky?

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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48 Responses

  1. Avatar North says:

    I share your concern about the security/liberty debate far more than I did your concern for government fiscal issues. As you quite succinctly noted I’m likewise not aware of any examples of security policy being rolled back and I can see quite a few reasons why this is.

    -Firstly the development of security apparatus create heavily invested constituencies. You have the employees of the companies and government agencies that manage and enforce the new policy; they very much want to keep their jobs. You also have the politicians and analysts who advocated for the policy; even once they’re out of office they have a lifetime vested interest in that policy continuing as a going concern. If security policies are abolished or rolled back that’s an implicit rebuke to all those who previously enacted or upheld it. I’d note this applies to the War on Drugs which is at least partially cast as a security issue.

    -Secondly and especially perniciously we have a serious agency problem at the political level. The risk/rewards matrix that government currently follows is badly skewed in favor of maintaining and heightening the security state at the cost of the liberty state. Politicians who ramp up security policy suffer no serious consequences if the risks they’re agitating against don’t materialize (the policies worked!) and suffer only minor downside if the risks they’re agitating against do appear (I did what I could, if people had only listened and given me more we’d have prevented this). On the other side of the ledger politicians who cut security policies face no significant benefit if they cut security policies (politician: “I reduced airport wait times by half and saved ten million bucks” general voting public: *yawn* Security interests: “You’ve made a lifelong enemy this day, he took ‘er jobs!!!) Meanwhile god(ess) help that hapless politician if he cuts security and then something happens (Politician A cut safety (security)to save a few bucks and now people are dead! *politician is run out of town on a rail*).
    Any politician with any sense at all would look at the preceding cost/benefit matrix and then at the very minimum maintain security policies if not heighten them.

    -Thirdly, the establishment of security policies/agencies/interests creates new pressure to create more security policies. Interested security related companies/government agencies will always advocate for more funding, more laws, more support because they instinctively know that organizations either grow or die. This then skews the political actors options even more in the direction of security policy implementation (the neutral or standing pat stance on security gets cast into a light similar to the cutting of security policy).

    How does this end? I don’t know and I can find little reason for optimism. History offers us very little; the technology that allows these kinds of security warnings/threats is very new; the connection between politicians and voters is simultaneously faster and at the same time lower info and more impersonal than ever before.
    How can this be changed? As far as I can see the fundamental problem is that the problem is all of us. The interest groups, security shriekers and security rent seekers can inveigle but the cost/benefit matrix exists because of the reactions of the great masses of the people. Perhaps impending budgetary crunches will cause a re-calculation of the cost/benefits matrix or we’ll luck into a generation of politicians with stiffer spines (yeah I won’t hold my breath). This is like the agency problems we see in the corporate world. We know it’s a big escalating problem but I just don’t see any clear obvious policy change that could/would impact it.

    The only light I see is the War on Drugs… if we could end it or at least begin its dissolution and the result is that the sky doesn’t fall in perhaps this could demonstrate that relaxing our collective grip doesn’t mean a guaranteed plummet into the abyss. That’s the only optimism I can offer. Ugh.Report

    • Avatar Glyph says:

      There is no question that the erosion of the Fourth was well underway due to the WOD long before 9/11. In fact, it is my understanding that *most* DHS and Patriot Act ‘wins’ have in fact been WOD-related, not terrorism-related. Patriot was a gift to the Drug Warriors more than anything else.

      http://nymag.com/news/9-11/10th-anniversary/patriot-act/

      It is also worth noting that the most troubling part of all this is the fact that it is the government doing it.

      I wouldn’t necessarily like the process any better if it was an employee of JetBlue doing the nude scanning & underwear searches or whatever; but a private company is susceptible to market pressures & customer feedback in ways that government bureacracies are not.Report

  2. Avatar Patrick Cahalan says:

    Nice post, Burt.Report

  3. Avatar Don Zeko says:

    “This is what is relatively new in American political dynamic: the mobilization of the citizenry directly against the judiciary, focused on efforts to defang the courts in various ways.”

    This is new? What about busing?Report

    • Avatar Don Zeko says:

      I’m nitpicking, though. Like North I don’t share your concern about fiscal policy, but security theater does seem to be a one-way ratchet without an obvious way out. Good post.Report

      • Avatar Stillwater says:

        I find this an interesting distinction. To me, it means that a certain type of authoritarian strain exists in the United States which is tolerant or even encouragingly supportive of police-state policies. If that’s the case, then liberal democracy in the US is functionally illiberal, at least on that score. Burt’s worry about it’s long term prospects are therefore entirely justified, but not because of anything specifically related to democracy. At that point, the worry is about US culture.Report

        • Avatar North says:

          Stillwater, I’ve seen this same mentality in Canada in person and read about it happening in Britain and Europe in general as well. I’d say this isn’t a US only problem.Report

          • Avatar Stillwater says:

            My sources in Japan have said the same thing.

            Generalize it then, and make it a question: is liberal democracy sustainable in an authoritarian culture where a majority of people actively and consciously prioritize security over liberty?

            I’d say the answer is no.Report

            • Avatar CK MacLeod says:

              “Liberal democracy” is our name for a type of regime, not for a complete anthropological or philosophical description of reality. So every liberal democratic regime exists in a complex relationship with illiberal, pre-liberal, non-liberal, etc., demands. The liberal democratic regime, with its typical civil society, exists as a kind of island in an ocean of the non-liberal. It also depends on other, non-liberal contents – religion, ethnicity, nationality, myth, what we tend to call “culture” – for its actuality, just as it always begins with and periodically returns to absolutely illiberal means of securing its existence.

              So, yes, it’s sustainable, to whatever extent it’s ever existed at all, as a regime. Sustainable isn’t the same as immortal, but, even if it undergoes decline, or intermittent complete disruption, that doesn’t imply the total disappearance of all of its precepts.Report

              • Avatar Stillwater says:

                But on your conception, liberal democracy is consistent with fascism, no? This may manifest as a continuum rather than a bright line I suppose. But it seems to me that at the edges we have clear cases where security justified in the name of liberty is – or at least can be – a contradiction in terms.Report

              • Avatar CK MacLeod says:

                It’s absolutely a contradiction in terms, but the contradiction in terms corresponds to a contradiction, or conflict, that arises of necessity, or you might say naturally, while recognizing that every one of these terms – “necessity,” “nature,” even “reality” – is itself contestable and may become or be revealed to be the subject of the conflict.

                As for “fascism,” prior to a precise definition, it stands historically as one main alternative to “liberalism.” It was expressly advertised as an answer to the perceived inadequacies of liberalism and specifically of liberal democracy. In that sense, it’s contradictory to the liberal democratic precepts, but consistent with the liberal democratic reality, as one political expression of the standing threat that liberal democracy must administer and in relationship to which it defines itself.Report

              • Avatar Stillwater says:

                I feel like I think I agree.Report

        • Avatar CK MacLeod says:

          Liberal democracy everywhere is “illiberal” in that sense. The U.S. has typically exceptional ways of dealing with the contradictions.Report

    • Avatar Burt Likko says:

      I think that resistance to racial equality litigation was where the resistance to judicial enforcement of civil liberties began. Now that racial equality is accepted as a cultural norm, the image of George Wallace standing on schoolhouse steps, defying a court injunction, seems picayune and antiquated.

      But the idea of a politician gathering support in opposition to courts is now a reality in political life in a way that is new — where before court decisions were controversial and used as rallying cries for political action, now they are used as justifications to attack the judiciary itself.Report

      • Avatar Kolohe says:

        But, and likewise this is nitpicking, attacking the judiciary is something both Andy Jackson and FDR did with lemon zest.Report

        • Avatar Burt Likko says:

          Aww. FDR just wanted to help out those Justices, they were getting old and needed some younger, more energetic blood on the Court to help them do all that work.Report

          • Avatar MikeSchilling says:

            Impeach Earl Warren! (Because of a principled belief that Gideon went too far, of course, nothing to do with Brown.)Report

  4. Avatar Bad-ass Motherfisher says:

    The incentives are aligned all wrong for this to go away.

    It was (perhaps) appropriate to establish better security scrutiny at airports in the immediate aftermath of 9/11 and the anthrax scare. It gave people a level of comfort in a threatening situation; and may have prevented a further airplane-centered terrorist scare. And the intrusiveness of the security screening was more or less the point–it was a feature, not a bug.

    But, clearly, we’re not in the same situation. But the public officials that scale back those security measures will be totally screwed should another “event” happen. In a political age in which every issue is more about signalling than about policy, there is no upside. The campaign ads that follow this will be brutal, talking about how this politician or that “let Americans die.”

    Israel manages to have a greater degree of real security, in a realistically more threatening environment, with less inconvenience and personal humiliation. I don’t know enough about their political culture to judge whether it’s as craven as ours: but clearly, the Israeli public “trusts” their government, at least on this one issue.

    And there’s the central irony. The central narrative of our politics is that the government cannot do anything right. And because that’s the case, government functions are more heavy handed, more rigid, and less dynamic. So I’d suggest to you that these intrusions are a result primarily of our crappy political culture, and not so much a growing disregard for “personal liberty.”Report

    • Avatar North says:

      It bears noting that the 9/11 model of hijacking ended literally part way through the 9/11 hijacking itself. Up until 9/11 the incentives for passengers had always been to sit quietly and obey instructions; eventually the plane would be handed over (taken back) and they’d be fine.

      When the passengers on Flight 93 learned what had happened to the other planes on 9/11 they stormed the cockpit and retook the plane (at the cost of their lives; the plane went down). Everyone knows now that placidly permitting the hijacking of their plane can lead to a firey death instead of a frightening delay. It is logistically impossible to get enough terrorists onto a plane to prevent the passengers from killing them if they attempted to do it. This bears emphasizing; 9/11 can’t be repeated again; the worst the terrorists can do is possibly destroy a plane.

      In light of that fact (to say nothing of changed policies and reinforced cockpit doors) the amount of security theater that happens in the airports goes from a bad idea to a ludicrously terrible idea.Report

      • Avatar Mad Rocket Scientist says:

        This! +1Report

      • Avatar Fnord says:

        Plus, the incentive of the authorities is likewise to bring down the plane even if that costs the lives of the passengers. Even if the terrorists somehow overpower the entire passenger compartment of the plane, they’re not going to overpower a fighter jet.Report

      • Avatar Chris says:

        What’s more, the government actually did what needed to be done to secure planes from this sort of attack: seal the cockpit and make it pretty much impossible, without explosives, to get in there while in flight.

        So now all they needed to do was monitor for explosives. But instead, they take people’s nail clippers.Report

      • Avatar Will Truman says:

        This sub-thread pretty much sums it up. I don’t mind some increased inconvenience for the sake of increased safety, but the 9/11 attacks were based, in large part, on our overlooking the possibility. That’s not the case anymore. We can drive ourselves nuts by trying to imagine what the next attack will consist of and trying to head off all possibilities at the pass. That’s pretty much what we’re doing. It’s not healthy.Report

        • Avatar MikeSchilling says:

          Yeah. Groping aside (and in the 50K miles I flew the last two years, I was only groped once, and that not in the US), the security line didn’t add noticeably to the other unpleasantnesses of flying nowadays.

          Though once, when a bunch of us stupidly missed our 6AM to San Diego [1] and had to take the first alternate we could find, that turned out to be Virgin with only first-class available. I could get used to that.

          1. We’re having breakfast near the gate, and one of the sales guys goes to the men’s room. We sit and wait for him, but he doesn’t know that, so he just boards. We eventually figure out that he’s not coming, and run to the gate just in time to miss it.Report

          • Avatar Will Truman says:

            I was on a list somewhere from 2005-08 or so – every time I flew the ticket had the friendly SSSS on it. I seem to get them inordinately now, though not with the regularity that I did back then.

            Truthfully, it’s what they ban (liquids, particularly) that bothers me more than the above (though I respect those who think differently). That and I hate taking off my belt and shoes. I’d happily go through a graphic porno machine to avoid that.Report

    • Avatar Kolohe says:

      “Israel manages to have a greater degree of real security, in a realistically more threatening environment, with less inconvenience and personal humiliation. ”

      Unless your a Palestinian.Report

  5. Avatar Pyre says:

    The time for such arguments was Sept 12, 2001 but noone wanted to make them because, after years of these incidents happening “over there” and nothing more challenging than the “summer crisis” that we went through every year, we didn’t have the capability to take a step back.

    As for Dirty Harry, even by the late 90s, he was considered an anachronism. A webcomic that I read has a Russian mercenary discussing the difference between 1800s life in England and Russia. “Here, the people smile and whisper lies. There, the people fight and shout truths.” We’ve been smiling and whispering lies so long that we look at anyone who fights and shouts truth as a dinosaur or a relic from a less enlightened/PC age.

    In the end, all of this is what we’ve wanted for 30+ years. If liberty is being stamped out, it’s because the citizenry continue to smile and whisper lies while the government enacts our will in stomping down on her neck.Report

    • Avatar damon says:

      Yes, and you can thank the “publik skoolz” for some of this. They are, in part, responsible for dumbing down kids, not teaching critical thinking skills, etc.

      The rest…well…”Rome is the mob”….

      At some point all empires collapse….Report

  6. Avatar NewDealer says:

    This is a very good post.

    I agree with you that civil liberties are popular in the abstract but not so popular in actual practice for the most part especially civil liberties dealing with the rights of alleged and actual defendants in criminal cases. The exclusionary rule and confrontation clauses are probably some of the most vexing issues in jurisprudence. I don’t think any country has come up with an adequate solution to the problem of illegally seized evidence. Most people can agree that search warrants are good and that police should follow them.

    The problem with criminal law is that crime is more inherently emotional than most other aspects of law. Civil litigation is usually only vexing to the parties in the case with a few big blockbuster exceptions that are highly political like Duke v. Wall-Mart, Ledbetter, Brown v. Board of Ed, Lawerence v. Texas, Roe v. Wade, etc. People react strongly and it is very hard to be counterintuitive and defend civil liberties in the face of shocking and notorious crime. It might be one of the hardest things in the world. Certain crimes produce more strong reactions than others and there is a lot of really appalling facts in criminal law.

    A lot of civil libertarians are fond of quoting Ben Franklin’s line on “People who prefer security over liberty deserve neither.” But no one has ever really come up with a practical way of convincing non civil libertarians on how to accept this line. Also no one has come up with a good metric on how much danger is acceptable in the name of liberty. This is a hard question to answer and most people do not want to be martyrs for liberty. Most people would probably rather put up with the indignities of a security state than risk harm by terrorists however remote.

    Who was the most ardent civil libertarian on the Supreme Court? Probably William Douglas. Most people also considered him a cantankerous jerk and all-around not very pleasant person. The best spokespeople for civil liberties on the bench were probably a lot more affable and charming like Earl Warren and William Brennan but even they often managed to earn the scorn of conservatives.Report

    • Avatar Pierre Corneille says:

      +1

      And thank you for calling out the overuse of that Franklin line (although if I recall correctly, Franklin qualified “liberty” with “essential” and qualified “security” with “temporary”).Report

      • Avatar Burt Likko says:

        I used to say that we are rich and clever enough that we ought not need to choose between liberty and security. But these days, I’m coming around to the idea that we aren’t clever enough to have the luxury of not having to make some kind of compromise.

        With that said, the qualifiers Franklin added are important to understanding his quote. Some balancing, some compromise is probably necessary. And just as rights cannot be absolute and perfected, neither can security. Our task, it now seems to me, is to strike as close to the optimum balance between policies achieving both goals such that we have protected a society worth protecting.Report

      • Avatar Tom Van Dyke says:

        Been wondering about that Franklin quote a long time. Just found this:

        “Franklin was not saying anything like what we quote his words to suggest…”

        Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the “essential liberty” to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security.

        What’s more the “purchase [of] a little temporary safety” of which Franklin complains was not the ceding of power to a government Leviathan in exchange for some promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes—and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier—as long as the Assembly would acknowledge that it lacked the power to tax the family’s lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for frontier defense and maintaining its right of self-governance—and he was criticizing the governor for suggesting it should be willing to give up the latter to ensure the former.

        In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade.

        http://www.lawfareblog.com/2011/07/what-ben-franklin-really-said/

        BTW, here’s the original book. The search function is space awesome.

        http://archive.org/stream/historicalreview00jack#page/n9/mode/2upReport

        • Avatar Stillwater says:

          If I’m reading it right, the “liberty” Franklin was referring to is the liberty of legislatures to determine their own taxing policy rather than corrupt that policy due to an (external) demand to provide security? That is interesting.

          I don’t think the final quote –

          In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade.

          – follows, tho. Franklin wasn’t making any claims about individual liberty in the letter. Rather, he was making a claim about the liberties of the legislature. Surely the Penn family felt that their individual liberties were at odds with the legislature’s liberty in this case. And that their individual liberty was compromised by the legislature’s desire to provide security.Report

          • Avatar Tom Van Dyke says:

            Stillwater, that Franklin isn’t speaking of “civil liberties” in that quote will do for now. If you happen to roll up your sleeves on the original text, do let me know your thoughts.

            That website is way cool, worth a look. Hope to hit the original book there for myself soon and see the context. I always thought the quote didn’t sound like Franklin, as he was no Patrick Henry liberty fire-breather type.

            Plus he was wise enough to know liberty isn’t of much use if you’re dead. So in a different context, of the legislature, it works fine for the genteel Franklin, not so much as Thomas Paine-like.Report

            • Avatar Stillwater says:

              I didn’t read the original letter, just the link to the essay on the letter. But even in that essay, I think the author gets things wrong. How? I cannot clearly say. But surely extrapolating from Franklin’s response to the governor’s demand that they not tax the Penn family to ensure border security is difficult to the conclusion that there is no inherent tension between liberty and security is unfounded.

              I agree with you tho, that it’s enough for now to show that he didn’t mean civil liberties in that quotation.Report

              • Avatar Stillwater says:

                Garbled, as usual.

                to ensure border security is difficult to doesn’t entail the conclusion that there is no inherent tension…(???)

                Or at least, doesn’t entail that Franklin thought there was no inherent tension between freedom and security.Report

  7. Avatar Jaybird says:

    The only thing that I don’t like about this post is how it says a lot of things that I’m saying in mine.Report

  8. Avatar BlaiseP says:

    I won’t fly to engagements anymore. TSA angers me. The airline luggage policy angers me, but that’s beside the point: I have an instinctive reaction to being searched. It’s just simpler to drive and stay on site.

    The hallmark of a dictatorship is a mukhabarat. Hard word to translate. Its triliteral root forms the basis for words related to source, but it means intelligence: reporters use the words “sources” and “sourcing” for the same concept. It’s more than intelligence, it’s tracking who’s saying what. A mukhabarat is more than a secret police force.

    NSA is building an enormous intelligence infrastructure out in Utah. We as citizens don’t have control of any of that. The Fourth Amendment as we understand it is gone. TSA is only the tip of the iceberg. We are all under surveillance. When Scott McNealy (king sized asshole) was in charge of Sun, the subject of Internet privacy came up. McNealy snapped “You have zero privacy anyway. Get over it.”

    Get over it, folks. Elvis has left the building. The horse is out of the barn. There’s no voting ourselves out of any of this, not now. When government takes away a right, it never gives it back. Maybe the courts could shut down some of this but I have my doubts. Other democracies are in equally bad shape on the privacy front. The list of the enemies of privacy is very long.

    We can entertain Dirty Harry fantasies here in the USA. That’s because we’re so goddamn deluded about the true nature of the threats we face. Our enemies have achieved their goals: we are now less-free and more-suspicious of each other than ever. That’s the point of guerrilla warfare: it’s not to win battles. Its goal is to force the state to overreact, driving a wedge between the citizens and the authorities.

    In the immortal words of Pogo Possum: We have met the enemy and he is us. While we continue to buy into all the partisan crap, we ignore the growing threat of alienation from each other and from our government. I have no clear ideas on how we might find common cause. Ben Franklin said “We must all hang together or we will hang separately.”Report

    • Avatar James K says:

      I won’t fly to engagements anymore. TSA angers me. The airline luggage policy angers me, but that’s beside the point: I have an instinctive reaction to being searched. It’s just simpler to drive and stay on site.

      I don’t blame you. I’ve heard of rape survivors who can’t bear to fly because the airport security is invasive enough to be triggering.Report

    • Avatar DensityDuck says:

      Privacy was never anything more than a social fiction. It’s like shaking hands when you meet someone; you’re doing it as a courtesy to *them*. When I close the window and pull the drapes, it’s not because I’m upset at the thought of being observed; it’s because I assume my neighbors aren’t interested in seeing my hairy butt slapping up and down on my wife’s belly.Report

  9. Avatar James K says:

    A very good piece Burt. Culture matters a lot here – democracy means the median voter gets their way most of the time and if the median voter loves safety above all else, then things don’t look good for freedom.

    The institutions of government also matter. This is where I think the less democratic nature of the Westminster System comes in handy. A few years back we had a mentally ill woman hold up a plane with a knife while it was still on the ground. After the event, Cabinet debated reviewing our security procedures by on the advice of officials concluded that the only extra precaution needed was securing pilot doors, and that was being phased in since 9-11 anyway. As it stands I only need to go through a metal detector if I’m flying to Auckland, and that’s because the US government insists on it – if planes are to fly from Auckland to the US all incoming domestic passengers have to be screened.

    Disentangling the causes for the difference between our countries is tricky – how much of it is a more laissez faire culture when it comes to risk (there’s a reason why we’re world leaders in creating stuff like bungy jumping), and how much is it due to a professional civil service that provide more dispassionate advice on risks. But either way I’m not sure what could be done to move the US approach to security closer to New Zealand’s.Report

  10. Avatar Creon Critic says:

    What policy steps would you suggest to buttress liberty against the kinds of incentives very well described upthread, politicians fearing the downside of risks and such. Strengthening already existing oversight mechanisms, so more power to inspectors general or the Privacy and Civil Liberties Oversight Board? More resources for congress members to come to positions independent of executive branch provided assessments? Or perhaps new offices able to counteract those security focused bits of government prone to overreaching, national level ombudsman office or a national human rights commission?

    I tend to agree with the civil liberties concerns, but on the other hand the threats are real and safeguarding the populace is a real responsibility, the Constitution not being a suicide pact and all that. Overall I find the recommendations of the Venice Commission pretty wise advice on the matter, several avenues of oversight so the blind spots of one particular approach don’t allow for the kinds of security theater and civil liberties encroachments that are rightly feared (Venice Commission’s “Report on the Democratic Oversight of the Security Services”
    pdf, h/t a RAND report, “Considering the Creation of a Domestic Intelligence Agency in the United States: Lessons from the Experiences of Australia, Canada, France, Germany, and the United Kingdom”, also pdf).Report

  11. Avatar DensityDuck says:

    What’s all this “we” stuff, white man? I didn’t vote for no TSA. No more, for that matter, than you voted against it. The whole thing was put into place and is kept running by people whose names never showed up on any ballot at all.

    But Libertarians are still racists, right?Report