December 7, 2011
Oakland police officers in riot gear line Frank H. Ogawa plaza, the site of an Occupy Wall Street encampment, Tuesday, Oct. 25. (AP Photo/Ben Margot)
Is our Constitution under siege?
Many civil liberties advocates fear it might be. They’re worried about a provision tucked into the 2012 National Defense Authorization Act, approved by the Senate last week, that would allow the military to detain without a trial any American citizen accused of being a terrorist, or of supporting terrorists who plot attacks against the United States. The ACLU called the proposal “an extreme position that will forever change our country.”
The indefinite detention provision is just one of many trends in policing and law enforcement that have civil liberties advocates alarmed. New external threats, as well as technological advancements, are posing new challenges to our Constitutional rights, advocates say. Policymakers are debating those issues in Congress and in the courts right now, and the decisions they make could have fundamental consequences for what it means to be an American.
Here are five issues that are especially worrisome to civil liberties watchdogs:
1. Indefinite military detentions of U.S. citizens
The provision, part of the bill that authorizes Pentagon spending for 2012, was drafted by Sen. Carl Levin of Michigan and Sen. John McCain of Arizona, and has bipartisan support in the Senate. The thinking, according to supporters, is that “America is part of the battlefield” in the so-called war on terror, as Sen. Kelly Ayotte of New Hampshire put it, so Americans should be fair game when it comes to finding and arresting terrorists.
The bill, however, takes the power to arrest and detain terrorists away from law enforcement officials, like the police or FBI, and gives it to the military, which, under the law, would have the power to imprison an American who “substantially supports” Al Qaeda, the Taliban or “associated forces” indefinitely, “without trial until the end of the hostilities.” And those hostilities aren’t likely to “end” any time soon, since the law that authorizes the use of military force against terrorists has no expiration date.
2. Targeting U.S. citizens for killing
Last week, lawyers for the Obama administration defended for the first time the administration’s decision to target radical Yemeni cleric Anwar al-Awlaki, an American citizen, for killing. Awlawki, who was born in New Mexico, was killed in an American missile strike in September; the ACLU has criticized the targeted killing program as blatantly violating the Fifth Amendment, which guarantees that no American citizen shall “be deprived of life, liberty, or property, without due process of law.”
At a national security conference last week, the lawyers for the Obama administration, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, said American citizens are legitimate targets for killing when they take up arms against the U.S., according to the Associated Press. Jameel Jaffer, a deputy legal director for the ACLU, said in an interview in September that the targeted killing program sets up a precedent in which “U.S. citizens far from any battlefield can be executed by their own government.”
3. Arresting witnesses for recording police actions
The raids at Occupy Wall Street encampments across the country have earned media attention primarily for their glaring instances of police brutality. But they’ve also tested the boundaries of police authority when it comes to limiting media access to police operations. As many as 30 journalists have been arrested covering Occupy protests, including many who clearly identified themselves as credentialed members of the media. Officials in New York and L.A., for example, have also tried to tightly restrict media access to the Occupy encampments, setting up barricades far away from the actual raids and allowing only hand-picked journalists to go behind police lines.
Civil liberties advocates have decried these tactics as attempts to stifle media coverage of the raids. But the media blackouts are representative of a broader trend in law enforcement in recent years in which the police have been arresting citizens simply for recording official police actions in public places. Twelve states, for example, have adopted “eavesdropping” laws that prohibit people from videotaping police actions without the officers’ consent. And in California, police officials have openly stated that they will arrest people taking photographs without “apparent esthetic value” if those people seem suspicious. Several courts have ruled these policies unconstitutional.
4. Using GPS to track your every move
The Supreme Court is scheduled to rule soon on a case that could have far-reaching consequences for privacy in the 21st Century. The justices were asked to decide whether the police could use GPS devices to track people suspected of crimes without first obtaining a warrant. Police across the country use GPS devices to track the movements of thousands of criminal suspects every year, but critics say the practice violates the Fourth Amendment prohibition against “unreasonable searches and seizures.”
In oral arguments in November, several justices expressed concern that, as technology improves, the power to track a U.S. citizens’ every move would only become more dangerous. “If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States,” Justice Stephen Breyer told the lawyer for the Justice Department, which is defending warrantless GPS tracking. That, Breyer added, “sounds like ’1984.’”
5. Surveillance drones spying on American soil
The use of drones to spy on states like Pakistan and Iran has become so popular in national security circles that many domestic law enforcement agencies are now considering using these spy planes to conduct covert surveillance on American soil. Drones are already used to patrol the U.S.-Mexico border, but now many police officials across the country are advocating for the use of drones in other types of police actions, like hunting fugitives, finding missing children and monitoring protest movements.
These drones, advocates note, can not only monitor large urban expanses, they can also use artificial intelligence “seek out and record certain types of suspicious behavior,” whatever that may be. The Orlando police, for example, initially requested two spy drones to help police the Republican National Convention next year, before changing their minds for budgetary reasons. Some police officials have even openly discussed arming the spy planes with “non-lethal weapons” like Tasers or bean bag guns.
These drones, and other tactics imported from battlefield to American soil, are an example of how the “war on terror” has threatened core protections guaranteed to American citizens by the Constitution, civil liberties advocates say. The erosion of these protections has been supported by both Democrats and Republicans alike. And, as the ACLU put it, the debate over these tactics “goes to the very heart of who we are as Americans.”