Laptop seizures by US government highlight 9/11-era climate of fear
The treatment of dissidents is the true measure of how free a society
is: consider today's examples from the US
* [Glenn Greenwald]
<http://www.guardian.co.uk/profile/glenn-greenwald>
*
* Glenn Greenwald <http://www.guardian.co.uk/profile/glenn-greenwald>
* guardian.co.uk <http://www.guardian.co.uk/> , Tuesday 4 December
2012 12.28 GMT
*
[NSA headquarters Maryland] The National Security Agency (NSA)
headquarters in Fort Meade, Maryland. Among other forms of
intelligence-gathering, the NSA secretly collects the phone records of
millions of Americans, using data provided by telecom firms AT&T,
Verizon and BellSouth. Photograph: NSA/Getty Images
Whenever I speak about the systematic abridgment of basic rights in the
post-9/11 era, there is a point I try to make that is quite elusive yet,
in my view, of unparalleled significance in understanding the
implications of allowing this to happen. When a government is permitted
to transgress the limits that have been imposed on its power (in the
case of the US, imposed by the Constitution), the relationship between
the government and the citizenry changes fundamentally.
In a free society, those who wield political power fear those over whom
the power is wielded: specifically, they harbor a healthy fear of what
will happen to them if they abuse that power. But the hallmark of
tyranny is that the opposite dynamic prevails: the citizenry fears its
government because citizens know that there are no actual, meaningful
limits on how power can be exercised. A nation in which liberties are
systematically abused - in which limitations on state power are ignored
without consequence - is one which gives rise to a climate of fear.
This climate of fear, in turn, leads citizens to refrain from exercising
their political rights, especially to refrain from posing meaningful
challenges to government authority, because they know the government can
act against them without real constraints. This is a more insidious and
more effective form of tyranny than overt abridgment of rights: by
inducing - intimidating - a citizenry into relinquishing their own
rights out of fear, a state can maintain the illusion of freedom while
barring any meaningful dissent from or challenge to its power. Here's
one four-minute video clip <http://www.youtube.com/watch?v=HfBUjRao7kk>
where I describe a personal example to illustrate how this pernicious
fear climate operates; here's another slightly longer video clip
<http://youtu.be/bUOwqNP-zGM?t=36m44s> where I elaborate on this point
more.
This morning, the New York Times reports on
<http://www.nytimes.com/2012/12/04/business/court-cases-challenge-border\
-searches-of-laptops-and-phones.html?pagewanted=1&_r=0&hpw> the US
government's practice of targeting US dissidents - or those whom it
believes to be engaging in dissent - with extremely invasive border
searches, including seizing (and sometimes keeping for months) their
laptops and other electronic data, all without any warrants. I've
reported
<http://www.salon.com/2012/04/08/u_s_filmmaker_repeatedly_detained_at_bo\
rder/> many times <http://www.salon.com/2010/11/09/manning_2/> before
<http://www.salon.com/2011/01/15/laptops/> on this practice and won't
repeat any of that here. Instead, I want to highlight several of the
examples provided by the Times as it underscores so powerfully how this
climate of fear functions:
"Laura Poitras, a documentary filmmaker and the recipient of a 2012
MacArthur Fellowship, estimates that she has been detained more than 40
times upon returning to the United States. She has been questioned for
hours about her meetings abroad, her credit cards and notes have been
copied, and after one trip her laptop, camera and cellphone were seized
for 41 days.
"Ms. Poitras said these interrogations largely subsided after a Salon
article
<http://www.salon.com/2012/04/08/u_s_filmmaker_repeatedly_detained_at_bo\
rder/> describing her experiences was published in April, but she is
editing her latest film in Europe to avoid crossing the border with her
research and interviews. (The film, the third in a series about the war
on terror, focuses on domestic surveillance.)
"'I'm taking more and more extreme measures, to the point where I'm
actually editing outside the country,' she said.
Just think about that. In addition to the credentials listed by the
Times, she produced a 2006 film that documented the actions and motives
of anti-US insurgents in Iraq, one that was nominated for an Academy
Award <http://www.imdb.com/features/rto/2007/oscars> for Best
Documentary, and then produced a second film on radicals in Yemen. She's
now working on an exposé of the US surveillance state and how
domestically invasive it is, featuring a whistleblower, William Binney,
who was an NSA official for 32 years (several months ago, the Times
published an eight-minute preview clip of that extraordinary film
<http://www.nytimes.com/2012/08/23/opinion/the-national-security-agencys\
-domestic-spying-program.html> , for which I was interviewed by
Poitras).
So here is a highly accomplished documentarian who has produced two
films and is working on a third - all of which, in one way or another,
pose challenges to US policy. Despite the fact that she has never been
charged with, let alone convicted of, any crime, she has been subjected
to serial invasion and harassment by the US government - so much so that
she is now afraid, quite rationally, of being in her own country while
editing her film.
As she has conveyed to me for that article I wrote in April, Poitras is
afraid to talk on a US telephone to anyone involved in her project,
travel into her own country with any materials relating to her film
work, or physically keep any of her unedited film on US soil. Does that
sound like the behavior of a citizen and a filmmaker of a free country?
Then there's this, about another US citizen:
"Pascal Abidor, who is studying for his doctorate in Islamic studies,
sued the government after he was handcuffed and detained at the border
during an Amtrak trip from Montreal to New York. He was questioned and
placed in a cell for several hours. His laptop was searched and kept for
11 days. . . .
"Mr. Abidor said he had also changed his travel patterns: because he is
regularly detained at the border, he keeps little data on his laptop and
rents a car when driving back to the United States from Canada, so he is
not stranded waiting for the next train. Still, he said he experienced
'a near panic attack' every time he returned to the United States.
"'I have not done anything illegal, nor have I tried to hide anything
I've done,' he said. 'I've told them where I've traveled. I'm studying
something that's legal. I learned a language millions of people speak. I
don't understand how a variety of legal acts can lead to suspicion.'"
Abidor is a US citizen (he also holds French citizenship). His parents
live in Brooklyn, and he was traveling to visit them the first time this
happened. He has never been charged with any crime, nor notified that he
is suspected of one. But, obviously for good reason, he is now petrified
of traveling into his own country, refrains from flying or taking a
train, and feels compelled to erase almost all data from his laptop -
all because he is studying to be a scholar in Islamic studies and is
learning Arabic. As he put it previously
<http://www.aclu.org/free-speech-technology-and-liberty/groups-sue-over-\
suspicionless-laptop-search-policy-border> :
"As an American, I've always been taught that the Constitution protects
me against unreasonable searches and seizures. But having my laptop
searched and then confiscated for no reason at all made me question how
much privacy we actually have. This has had an extreme chilling effect
on my work, studies and private life now I will have to go to
untenable lengths to assure that my academic sources remain confidential
and my personal dignity is maintained when I travel."
Does that sound like a citizen and academic of a free country? Then
there's this example, perhaps the most amazing one from today's Times
article:
"A laptop belonging to Lisa M. Wayne, a criminal defense lawyer, was
searched after she returned from a trip to Mexico.
"Ms. Wayne said her main concern was the information about clients'
cases stored on her laptop: she is a past president of the National
Association of Criminal Defense Lawyers, which is a co-plaintiff in the
Abidor suit, along with the National Press Photographers Association.
But at the time of the search, she was unaware of her rights and felt
pressured to hand over her computer.
"'It was very clear to me that the longer I objected or interrogated
them, the longer I was going to be detained, and I had a connecting
flight,' she said. 'It's an intimidating experience. It was not
consensual other than, you comply with the rules.'"
Even a former president of the National Association of Criminal Defense
Lawyers is sufficiently intimidated by these measures that she reacted
only with paralysis and compliance: she just dutifully handed over her
laptop to government agents to search through and copy at will. And it
requires little prescience to understand the message being sent here to
other lawyers or activists who challenge government policy: if someone
in Wayne's position can and will be subjected to these invasions, who
won't be?
Laptop seizures are far from the only tactic employed by the US
government to put government opponents in a state of fear and thus deter
others from engaging in similar dissident conduct. That is also the aim
of measures such as the unprecedented persecution of whistleblowers; the
prosecution of Muslim critics of US foreign policy
<http://www.salon.com/2011/09/04/speech_23/> for "material support of
terrorism", thetargeted FBI entrapment
<http://www.civilfreedoms.org/?p=14421> and "preemptive prosecution
<http://www.civilfreedoms.org/?p=6707> " of US Muslims, NATO protesters,
anarchist activists, and others with ideologies the US government
dislikes; and - most of all - the ubiquitous surveillance state.
What makes this tactic particularly effective is that it will not affect
those who have no interest in engaging in real dissent against the
government. If you're not a filmmaker who challenges the prevailing
government narrative (Poitras), or a scholar trying to understand rather
than demonize currents in the Muslim world (Abidor), or a lawyer
involved in groups suing the US government for unconstitutional behavior
(Wayne), or an activist advocating for WikiLeaks and working to protect
online anonymity and thus thwart government spying and control of the
internet (Jacob
<http://boingboing.net/2011/01/12/wikileaks-volunteer-1.html> Appelbaum
<http://www.washingtonpost.com/blogs/blogpost/post/wikileaks-volunteer-j\
acob-appelbaum-targeted-in-secret-government-order/2011/10/10/gIQAaJNiaL\
_blog.html> ), or someone who supports Bradley Manning's legal defense
(David House <http://www.aclum.org/news_12.23.10> ), then you're not
going to be subjected to this sort of intimidation and rights-invasions,
and it's thus easy for you to simply assume that it does not exist.
In essence, the bargain offered by the state is as follows: if you
meaningfully challenge what we're doing, then we will subject you to
harsh recriminations. But if you passively comply with what we want,
refrain from challenging us, and acquiesce to our prevailing order, then
you are "free" and will be left alone. The genius is that those who
accept this bargain are easily convinced that repression does not exist
in the US, that it only takes place in those Other Bad countries,
because, as a reward for their compliant posture, they are not subjected
to it.
But even in most of the worst tyrannies, those who are content with the
status quo and who refrain from meaningfully challenging prevailing
power systems are free of punishment. Rights exist to protect dissidents
and those who challenge orthodoxies, not those who acquiesce to those
orthodoxies or support state power; the latter group rarely needs any
such protections. The effect, and intent, of this climate of fear is to
force as many citizens as possible into the latter group.
The true measure of how free a society is how its dissidents are
treated, not those who refrain from meaningful anti-government activism
and dissent. To apply that metric to the US, just look at what the
American citizens quoted in this Times article this morning are saying
and doing.
