Essential Liberty In A Post-911 World

 

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
        - Benjamin Franklin 
           Historical Review of Pennsylvania, 1759

 

You know how you get people to stop running red lights?

You know how to make drivers slow down and obey the posted speed limit in a school zone?

It’s easy really.

You use a simple application of technology.

You take a speed sensor – it’s doesn’t really matter what kind – and you hook it to a camera along with some control circuits and some off-the-shelf software, you can make it as simple or as complicated as you like. You mount the contraption in a tamper-proof box in the area where you want to enforce traffic laws. Couple the machine to a system for identifying vehicles and drivers and a method for imposing financial consequences on law breakers.

You can put up a sign advising motorists of what you’re up to, or not.

Turn it on and it wait.

Pretty soon the tickets start piling up.

Pretty soon after that, people start obeying the law.

Automatic photo enforcement, typically referred to as a Traffic Enforcement Camera (or other unflattering names, usually involving four-letter words), it’s simple, impartial, works rain or shine 24-hours a day without time off for Union negotiated breaks, and it’s cheap compared to a manned speed trap.  It’s also extremely effective – it’s damned hard to claim innocence or police malfeasance when the judge is holding a picture of you blazing through a red light in an elementary school zone twenty miles per hour over the posted speed limit while texting and smoking a doobie. 

The technology, in various forms, has been around for more than a hundred years now.

And it works.

You install traffic enforcement cameras in a school zone, put up signs telling people you’re doing it, and start mailing out fines, and people will slow down.

You install one of these systems at an intersection and people will stop running red lights.

You install traffic enforcement cameras and impose immediate consequences for traffic violations and people will start obeying the law.

The simple truth of the matter is that traffic enforcement camera systems save lives, provably so.  This technology and similar automated surveillance and enforcement systems demonstrably make the world a safer place – at least in the certain limited aspects over which they are applied.

So how come so many people are opposed to the technology? Adamantly opposed. Vehemently opposed.

How come so many people, especially Americans, are almost offended by the very nature of such technology, the mere idea of its existence and use by government? After all, isn’t it the government’s job to enforce the law? Isn’t that exactly what so many people are demanding? Government enforcement of the law? When it comes to illegal immigration, or illegal drugs, or illegal guns, or Wall Street? So why would we be so opposed to automated enforcement of traffic laws?

In places where drivers habitually run red lights (in certain areas, running red lights is almost a cultural thing. I used to live in Maryland, trust me on this, always wait ten seconds after the light turns green before proceeding into the intersection or you’re going to get creamed), in places where motorists routinely ignore pedestrian crossings and school zone speed limits, the population will complain bitterly about the scofflaws and the resulting accidents and fatalities and they will loudly demand “that something must be done!” 

Install traffic cams, and those self-same folks will scream even louder about freedom and rights and totalitarianism.

Traffic enforcement cameras work, but in nearly every place they’ve been installed (at least in the United States), they’ve almost inevitably been removed within a short time due to public outcry.

Despite the fact that they work and they make the world a safer place.

Think about it, if we really wanted our traffic laws impartially and thoroughly enforced we’d implement this technology everywhere, not just on street corners and in crosswalks, but on highways and residential streets, in parking lots and at 4-way stops. Coupled to advanced software and backed up with real, immediate, and inevitable consequences, the rate of traffic violations would plummet – especially if you combined that automated surveillance technology with ancillary systems riding on top of the video technology, for example systems that performed facial recognition of those with suspended licenses, or looked for motorists who were texting and driving or who appeared to be intoxicated or who were in the throes of road rage or who were engaged in obviously illegal activities, or that smug self-righteous ass in the electric car doing 50MPH in the fast lane and who refuses to move over despite the clearly posted regulations requiring him to do so. 

You could fuse that technology with other systems, heat sensors for example, that when combined with video would tell you with a pretty good degree of certainty that the back of that innocent looking van was filled with illegal immigrants and not plumbing supplies.

Now, let’s add in drones …

What?

What’s the matter? Don’t you want the road to be a safer place? Weren’t you just demanding that the violators, the people who routinely risk your lives and the lives of your children, be taken off the road and prosecuted for their recklessness? Don’t you want the police to beat that hell out of that tofu eating hippy blocking the fast lane? (I know I sure as hell do, but I digress).

You do?

Oh, but not this way?

But why not?

All of this technology is available right now. Most of it is cheap – cheaper than hiring the equivalent amount of manpower anyway, and far cheaper than the billions we pay each year in insurance, ineffective human traffic enforcement, accidents and fatalities.

Used correctly, the technology is extremely effective.

Used correctly, it’s impartial. 

Make it ubiquitous, and it will save lives.

So why don’t we?

Why don’t we want automated traffic enforcement systems?

Why would we, as a society, be willing to put up with the risks of drunken and reckless drivers, road ragers, speeders, highway shooters, those who routinely ignore red lights, and those who risk our kids’ very lives in front of our schools and playgrounds every single day?

Why would we complain bitterly about these criminals and demand that the authorities do something, but then reject the only really practical solution to preventing their actions?

Why?

 

The answer to that question, why? is the same exact reason that the vast majority of Americans are outraged over recent disclosures regarding National Security Agency monitoring programs.

 

At first glance, traffic enforcement cameras seem like a good idea.

And they are, so long as you ignore one fatal flaw – human nature (which, ironically, is the same fundamental flaw in numerous systems, starting with most forms of government. But again I digress).

The simple truth of the matter is this: power corrupts, and absolute power corrupts absolutely.

That bitter truism, attributed in the above form to the 19th Century historian and moralist, Lord Acton, is the central core concept that the entire United States Constitution was written around. Power corrupts, therefore power must be limited and controlled.

That caution, the corrupting influence of absolute power, is acknowledged in nearly every aspect of our society, from presidential term limits to antitrust regulations.

It’s why we hate the idea of traffic enforcement cameras, it’s not just because we want a sporting chance at breaking the law (and we do, don’t we?) but because the potential for abuse is too high, because the corruption of absolute power is absolutely inevitable given human nature – and most especially the nature of those humans in positions of power and authority.

Because unintended consequences are inevitable.

In almost every case, installation of traffic enforcement cameras leads almost immediately to the use of the collected information in ways far outside the scope of traffic enforcement. 

In one well known case, a picture of a red-light violator was sent along with the electronically generated ticket to the offender’s house, where his wife opened the envelope and found a picture of her husband behind the wheel of their family car – with his mistress’ head in his lap (You can sort of understand why he missed the light change). That picture ended up in the hands of the wife’s divorce lawyer and he got taken to the cleaners in a major way. Now, sure, the guy was a philandering jerk who put other drivers at risk with his actions, but it’s not the government’s job to inform on cheating spouses. And the camera was installed for the express purpose of traffic control, not vice.  And in the end it was pretty clear that the government had violated this guy’s rights, not by taking a picture of him in flagrante fellatio, but by not protecting his personal information and (inadvertently) informing his (ex)wife. He sued for violation of privacy and won.

Now it can be argued that the above case was unintentional and unlikely (and hilarious), but other violations of constitutional rights aren’t. With automated facial and/or license plate recognition it becomes a simple matter to track vehicles without a warrant or probable cause simply as part of the overall data gathering process. 

Worse, in nearly every installation, due to the technology involved, the systems are maintained by contractors – who tend to get paid by the number of violators their cameras catch.  Inevitably (there’s that word again), those contractors tended to game the system. And in too many cases, the local governments were okay with that, up to a point, because they shared in the profits.  And it doesn’t take long for the whole thing to spiral out of control and wander far from the original objective.

And the stored data can be used in all sorts of ways – imagine if the collected database was sold to a marketing firm.  Using advanced visual data mining tools, the information can be crunched any number of ways. And a contractor might have any number of commercial interests and uses for such data. A savvy marketing expert could determine, for example, that you might shortly be in need of a good discount divorce lawyer, or the number of the local florist … or a shot of penicillin.

And then there’s blackmail.

Power corrupts, absolute power corrupts absolutely: this isn’t hyperbole, it’s a demonstrable truth. It’s human nature.

But it’s also human nature to disregard the lessons of history, to be influenced by groupthink, to act rashly out of panic and fear and anger – and to blind ourselves to the inevitable consequences of those ill conceived decisions.

Inevitably, governments who install traffic cameras without some very, very draconian regulations limiting their use, end up taking them back down in fairly short order – typically at a financial loss.  However, despite the repeated examples of poor implementation and endless lawsuits, local governments are eager to jump on the traffic camera bandwagon and the companies that make such systems are a going concern.

Because that too, is human nature.

And so, here we are, a decade and more from those terrible days in September, 2001.

We, as a people, as a government (because in America, we are the government), acted in panic a decade ago.

We ignored the very explicit lessons of our own history and the very explicit admonishments of our own Founders. 

In our blind fear and mindless panic and red-eyed rage, we passed laws that unleashed forces and removed certain constitutional safeguards without regard for the inevitable consequences.

The NSA monitoring and data mining programs that have recently come to light are the inevitable result of the Patriot Act and more specifically the Protect America Act of 2007 (and it’s repeated reauthorization since) and a dozen other lesser known laws that we’ve allowed our elected representatives to pass over the last decade. Those laws removed very specific constitutional protections and levied secret laws upon American citizens and fundamentally changed the very fabric of our society. 

And we let it happen.

If you, as an American, are in any way whatsoever surprised by the revelation of these NSA programs, well, you, my friend, are part of the problem and you have absolutely nobody to blame but yourself.

Save your outrage, you’re about a decade too late.

There’s no scandal here. 

The programs are perfectly legal under our new laws (whether or not they’re constitutional is another matter).

Congress was fully aware of them – oh yes indeed they are, and don’t you let them try to tell you otherwise, they provided the authorization and the funding and have done so every year since the programs were started.  NSA can’t do a damned thing without money, and the money comes from Congress. And the members of Congress who scream the loudest about personal liberty and totalitarianism are the programs’ most ardent supporters – don’t believe me? Look at who sits on the House Permanent Select Committee on Intelligence, every single one of those people were fully aware of these programs, by definition.

The president was also fully aware, since it’s his office who oversees the agencies responsible. 

You can blame the Left, and you can blame the Right, but both are equally responsible.

The programs began under a Republican administration and continued under the current Democratic one. It was approved by a Republican-majority Congress and renewed under a majority of Democrats. 

You can blame Bush and you can blame Obama, but the simple truth of the matter is that you and I let this happen.

We, as a nation, demanded that 9-11 never happen again.

We demanded that our intelligence apparatus never, ever, again allow terrorists to slip past our safeguards unnoticed.

We demanded safety and we were willing, as a nation, to trade certain freedoms to get it.

When I was in uniform working in this same field, for this same agency*, we used to say that we had to get it right every single time – the enemy only had to get lucky once.

But, of course, we knew that we could not, in fact, get it right every time. It was impossible. 

And the enemy did, in fact, only have to get lucky once.  And sooner or later he would, because the odds guaranteed it.

And it was a risk we understood because in order to be right every time, in order to ensure that the enemy didn’t get lucky, not even once, well then we’d have to live in a radically altered world – one that would make the totalitarianism of The Hunger Games look downright democratic in comparison. And we weren’t willing to go down that road. Every single person that ever had anything to do with NSA (NSA, not The NSA, people who actually work there call it NSA) had it pounded into their heads over and over and over and over – we’d don’t spy on Americans. Period. You do, you go to jail. Of all the rules we learned, that one was sacred, inviolate.  If, and it was a rare if indeed, you were involved in anything that might lead to collection of information on fellow Americans, there were very, very strict FISA rules administered by stern faced unsmiling officers and the letter of the law was adhered to in detail. Each and every one of us received mandatory training in this area on a regular basis, it was the one rule we could never violate.

NSA had been abused once, under Nixon, and it damned for sure wasn’t going to happen again, not on our watch.

In the horrific aftermath of 9-11, we, as a nation, we Americans demanded that those who protect this country be right every single time, no matter the cost.

We demanded that the enemy, whoever he was, could not get lucky, even once. Period.

No matter what the consequences.

And so we changed the rules.

No leader, no politician, could stand before that unreasonable and impossible demand and tell the truth.

No leader, be it George W. Bush or Barack H. Obama could look the nation in eye, even today, and say, “What you demand can’t be done, not without radical changes to our way of life.”

Just as no local politician can stand in front of his constituents and say, “Look folks, unless you’re willing to put up with some unintended consequences, we just can’t completely stop people from running red lights…”

So they go out and buy the traffic cameras, just as the nation went out and bought themselves the equivalent surveillance system on vastly larger scale. We, as a nation, were willing to trade our essential liberty for the illusion of security – and so we allowed our government to write and pass and continually reauthorize the provisions of the Protect America Act.

We, as a nation, were willing to sacrifice our honor for that security, we were willing to kidnap people and torture them and put them into indefinite detention without trial or legal recourse in direct repudiation of everything this country supposedly stands for, we were willing to put up with warrantless wiretaps and warrantless searches of our homes and property and library records, we were willing to put up with being strip searched in our airports, we were willing to put up with secret laws and new limits on our rights, we were willing to proclaim a new age of McCarthyism and declare our neighbors the enemies of freedom, and we were more than willing to sacrifice our children and our treasury to a decade and more of war for that illusion of security. 

A certain segment of our population demanded, and still loudly demands, racial and political profiling (ironically, those are the self same folks who were so, so very outraged at being profiled themselves by the IRS, but again, I’m digressing).

Now, now, the nation is suddenly up in arms over NSA’s domestic intelligence gathering efforts? Now?

Honestly, where the hell have you people been?

None of this should be a surprise. These programs began a long, long time ago, and right after 9-11 they were ramped up to full throttle and the safeties were removed and they’ve been running that way ever since. 

And there were plenty of those who raised the alarm, including yours truly right here on this blog, plenty who protested – on both sides of the political aisle. They were ignored. They were dismissed as alarmists, denounced as cowards and traitors and enemies of America (and in fact if you go back and read the comments under certain posts here on Stonekettle Station, you’ll find accusations of exactly that. I’ve lost track of how many times I’ve been called a traitor by supposed patriots).

And it’s funny, because those protesting the loudest now, are the very ones who were most enthusiastic about those measures when they first appeared. And don’t think they don’t know it either, go on, look and see which members of Congress are screaming in outrage – and which ones are keeping their heads down and hoping nobody notices them.  Ask yourself why the usual cast of characters isn’t loudly demanding impeachment proceedings over this, their silence is profound and telling. Then go take a gander at their voting records and see which ones voted for the Patriot Act and reauthorization of the Protect America Act and its changes to the FISA provisions. Go on, I’ll wait.  This is the same batch of jackasses who angrily demand “smaller government” and gleefully embrace Sequestration and the furlough of federal employees, and then loudly wonder why the agencies like NSA have to hire contractors to carry out their massively expanded missions – missions expanded by these self-same Congressmen and Senators.

I’ve said it before and likely I’ll have to say it again, if you give the Texas-born Jesus-fearin’ Flag-wavin’ Conservative the power, you’ve automatically given it to his successor, the Kenyan-Born Muslim-lovin’ America-hatin’ Liberal.  Our government was designed with limits on power, if you don’t want the current guy to have that power, you shouldn’t have given it to his predecessor. The president didn’t create this monster, he inherited it. And the last president didn’t create it either, he was given it as a gift by a terrified nation pissing itself in fear.

Quite frankly I’m less worried about the current guy abusing this power than I was about the previous one, but I don’t want either of them to have it – not without some very, very strict controls. Ditto drones. Ditto everything else right on down to traffic cameras.

The simple truth of the matter is that in cases like this, it almost doesn’t matter which party is in the White House. It’s relatively easy to hold the President accountable, and there are multiple mechanisms for doing exactly that. 

The problem is Congress. 

If you want NSA to be accountable, along with all the rest of the three-letter agencies, then Congress must be accountable.  And if you want Congress to be accountable, then you have to hold them to account instead of just reelecting the same frightened, ignorant, small-minded, self-serving extremist jackasses over and over.

The power is enormous. The potential for abuse is fantastically high. Power corrupts, absolute power corrupts absolutely. That power must be limited. But in order to limit that power, we as a people must be willing to accept certain risks, we must be willing to acknowledge that the enemy will get lucky once again, the odds guarantee it.

We must be willing to give up certain securities in order to maintain our essential liberty.

And we must face the danger with our eyes wide open and our heads held high, with courage instead of fear.

This is exactly what people like me have been saying for the last twenty years.

Welcome to the party, glad you could make it.

 

The loss of liberty at home is to be charged to the provisions against danger, real or imagined, from abroad.
        - James Madison

 

 

 

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Disclosure:  I used to work for NSA. As a uniformed member of the US Naval Security Group and its successor organization, I spent more than twenty years in and around the agency.  Unlike Edward Snowden, I take my oath very, very seriously indeed and therefore I will not discuss my duties in any fashion whatsoever. Suffice it to say that I am intimately familiar with the National Security Agency and while I may be biased, I have very good reason to believe in the organization’s professionalism and regard for the rights and liberties of all Americans.  I don’t expect you to take my word for it, but I will say this: unless you’ve been inside, everything you think you know is wrong. 

Here’s what I know for certain, based on my personal and professional experience: The folks at NSA are dedicated professionals who hold their oath to the nation above all else.  No one is more aware of the power they wield and the potential for abuse than they are – because they, my friends, are Americans too. They were set a task and authorized to carry it out and they will do so with the utmost dedication – until they’re told to turn it off.  If you, as a nation, want it turned off, really want it turned off, then you need to hold your elected representatives to account.  I’ll offer this caution however: think very carefully before you command the Djinni, think it all the way through.

Regarding Edward Snowden: He was a contractor IT dweeb, not an operator, not an analyst, and certainly not a policy maker and you should regard anything he says from that perspective.  The programs he revealed are legal under our current laws and as I said in the article they should have been a surprise to nobody.  Snowden claims that he can’t get a fair trial in the United States, boo hoo, he’s got nobody to blame but himself. He betrayed his oath, he broke the terms of his contract, he purposely violated the provisions of his security clearance.  If he had concerns, he could have availed himself of any of a dozen avenues of address, including contacting members of Congress directly, instead he chose to make himself into a martyr and so now he can suffer the consequences.