[ql06] CIVIL LIBERTIES: Yanqui Capps II system
- From: "K.K. Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Sun, 19 Oct 2003 15:23:05 -0400
I spent an enjoyable portion of last week researching citations in Prof.
Art Cockfield's QLJ paper on increased electronic surveillance of
Canadians in the wake of 9-11.
(Art mainly teaches tax, I think; but he's a nice guy. And right on in
worrying about current legislation which seeks to make it easier to
track citizens with changing technology.)
His thrust is that this increased willingness to give up liberty for
safety is not good for what we are Constituted to be. (Charter s.8)
Lengthy essay from the U.K. follows.
I didn't know anything about this Capps II crap.
I know there was some heat on list earlier on this topic of civil
liberties and such, and that's fine. I thought it was done with decorum
and reference to law.
But I would like to make a VERY general point about Capps II and the
move toward decreased mobility...
We're just getting into the common law origins of property and William
the Conqueror et al. That is, feudalism gave birth to our modern,
capitalist property relations.
Feudalism, of course, was a reaction to the Dark Ages and collapse of
mobility. The Roman Empire was road driven. Mobile. Mingling of peoples
brought wealth. I don't want to overstate it... but the logical
extension of a continued bunker mentality American policy (per Capps II)
will be a shift toward Dark Ages non-mobility. And more "barbarians at
the gates."
Ken.
--
They that can give up essential liberty to obtain
a little temporary safety deserve neither safety
nor liberty.
-- Benjamin Franklin
--- cut here ---
Exposé of creeping Orwellianism in the US
Who the hell are you?
Fly to America and your most intimate details will be filed and passed
to the intelligence services. And the US plans even more alarming
threats to liberty.
By Jenni Russell
New Statesman, U.K.
10/18/03
For at least the past 20 years, I have felt that civil liberties counted
as a specialised interest, just like golf or architecture, which I
didn't have to share. The phrase has none of the glamour or emotional
charge of civil rights; indeed, it's right up there with "EU
constitution" or "freedom of information" as one of those important but
tedious terms that has me automatically flicking to the next article. In
the west, surely all the arguments and most of the battles had already
been won. I could leave it to groups such as Liberty to deal with the
skirmishes.
But now and then something happens which makes you realise the world you
think you live in is not the solid, reliable construction you imagined.
For me, it was not Guantanamo - appalling as it was, I assumed that this
indifference to established norms was a limited phenomenon that wouldn't
reach into ordinary lives. What made me uneasy was a relatively minor
revelation.
It was the discovery that European airlines flying to America have been
compelled to give the US government free access to all the details they
hold on every one of their passengers. Not only does that include names,
addresses, nationality, passport numbers, credit card details and
addresses while in America, but it can include any other information on
the airlines' databases, such as medical information, disabilities,
special meals ordered, price paid, onward flights, past itineraries,
banking details and names of persons to be contacted in emergencies. In
short, if you have flown to, from or through America in the past two
years, then key elements of your life, including quite possibly your
ethnic and religious identities, are being held on file by the American
authorities as part of their worldwide information-gathering. They are
sifting and analysing that data to see whether you pose a threat to
them, or whether they think you may do so in the future.
Once the next stage of their passenger-profiling system is in place,
which is planned for next year, each of us will be allocated a colour
coding. Greens will be free to travel. Yellows, a category thought
likely to include Arabs or foreign Muslims, will be considered a
security risk. They will get extra-intensive screening, and may be
fingerprinted and photographed. Red will mean that you are on a
terrorist watch list, and you will be detained by airport security.
This system, known as Capps II (Computer-Assisted Passenger
Pre-screening System II), is not confined to foreigners. All Americans
who fly will be entered on it, and their files will be available to
other government departments. Yellow-coded files could also be shared
with the CIA and with foreign intelligence agencies. Capps II will be
the basis for a comprehensive tracking and surveillance system of
everybody who moves in America. The American Civil Liberties Union fears
that it will evolve into a totalitarian system of internal controls,
affecting political dissenters, as well as supposed terrorist threats.
In Europe, data protection laws allow information to be used only for
the purpose for which it is collected. America has no such laws. The EU
is arguing with America over how to restrict its access to the passenger
records of European airlines, but from a position of extreme weakness.
America says it will fine air- lines $6,000 per passenger if they fail
to provide all the access demanded, and the EU's transport commissioner
says he cannot afford to bring air traffic with America to a complete
halt.
The potential scope of the system was revealed in August, when it was
discovered that a low-cost airline, JetBlue, had given information on
its 1.1 million passengers to a private US army contractor, despite
promising passengers that the information was confidential. The
contractor cross-referenced the data with social security files,
occupations and the economic files held on commercially available
databases, it came up with passenger risk profiles, and the results were
presented at a Department of Homeland Security seminar.
Can the system be justified by the threat to America, and by its focus
and efficiency? Not on the evidence so far. Capps II is not yet in
operation, but its precursor clearly is. Earlier this year, many
Americans discovered that they were being prevented from boarding
flights, or were subject to continued and mystifying searches and
security measures. A nun from Milwaukee, who had no criminal record and
had never been arrested, was prevented from catching a plane to
Washington for an anti-war protest. Two female peace activists wanting
to fly from San Francisco to Boston for a family visit were detained for
hours by security police. A left-wing constitutional lawyer was
repeatedly strip-searched before flights. A law-abiding computer
software engineer who flies twice a week (and happens to share the same
name as a detainee at Guantanamo) found himself repeatedly delayed,
searched and questioned every time he checked in. All these people, and
many others, it turned out, were being stopped because they featured on
the Transportation Security Administration's "no-fly" lists. There is no
mechanism for finding out why names are listed, nor for removing them.
After several meetings with the TSA, the only solution the software
engineer was offered was to change his name.
Many more names are going to appear on those no-fly lists in future.
Last month, the Bush administration announced that it intends to combine
the records of a dozen federal agencies to make a master "watch list" of
more than 100,000 terrorist suspects - so that there can be no repeat of
the intelligence confusions that led to the 11 September 2001 attacks.
But how accurate will the lists be? How will they be used? And what is
the definition of terror? Officials are frank about the last. It will be
wide, and will include, for example, Americans suspected of involvement
in domestic events, such as attacks on abortion clinics. Inclusion on
that list will have far-reaching consequences. Private employers such as
power plants and airlines will be allowed to use it to make secret
checks on potential employees. Again, there is no mechanism to discover
or challenge inclusion, and no right of appeal against capricious
judgements. Michael Ratner, of the Centre for Constitutional Rights,
says it recalls the blacklists of the McCarthy era. It challenges the
whole basis of America's laws, which is that people must be allowed to
test the accusations made against them.
Among Americans, there are some stirrings of unease. In the immediate
aftermath of 9/11, there was no public outrage at the largely random
"preventive detentions" of almost 800 immigrants in the New York area.
People simply disappeared from their homes, could not be traced by their
relatives, were denied legal help, and were deported months later,
mostly for minor immigration violations, after being mistreated and
beaten in prison. Not one was ever charged with any terrorist offence.
There was no reaction, either, to the government's closing of some
courts to the public during immigration and terrorism trials. Judges
issued sombre warnings. One said bleakly of his secret court: "Democracy
dies behind closed doors." But he wasn't reflecting the public mood. In
autumn 2001, Congress passed the Patriot Act by a huge majority,
allowing unprecedented surveillance and searching of anyone whom the
security services defined as being of interest. Only one senator voted
against it. The assumption was that, in the war on terror, new tactics
were justified.
Now ordinary people fall under suspicion for ordinary behaviour. In San
Francisco, a retired phone company worker got into a fierce discussion
at his gym about the failings of President Bush and the war on Iraq. He
was woken several days later by federal agents calling at his apartment
to interrogate him about his politics. Last February, a middle-aged
defence lawyer in New Mexico was in an internet chatroom when he
apparently suggested that "Bush is out of control". Within hours, he was
surrounded by police, then handcuffed by Secret Service agents and
questioned about whether he was a threat to the president. In North
Carolina, a 19-year-old was visited by FBI agents who had been told she
had "un-American material" in her apartment. It consisted of a poster
opposing Bush's use of the death penalty. She was asked what she knew
about the Taliban and questioned for 40 minutes. Her details have been
placed on file.
Gradually, Americans have woken up to the idea that it is not just
terrorists and foreigners who are potential targets of the Patriot Act,
and that they too may have something to fear from it. So far, 160 cities
and towns and three states have passed resolutions opposing it. It
removes many constraints on the security services' powers. Agents no
longer need to demonstrate to an independent judge that there are good
reasons to suspect an individual of terrorist or criminal activity.
Instead, they take their requests for search warrants to a specially
constituted intelligence court, which has never yet turned down an
application from the FBI. Agents need only claim they are investigating
a threat to the state.
But the definition covers many legal activities. In the case of a
non-citizen, a letter to the local newspaper criticising America's
foreign policy is now enough to trigger an investigation. And that
investigation can extend far beyond the suspect. If he or she has used
someone else's computer, it may be seized; if he or she has e-mailed an
organisation or a contact, that account, too, can be bugged. The
agencies can secretly read or seize records of any kind, including
confidential medical, business and banking records. Phones can be
tapped, e-mails duplicated and websites monitored, without any
meaningful judicial supervision. Under what have been termed the "sneak
and peek" provisions, any home or office can be secretly searched
without your being notified until weeks or months later.
Yet it isn't these measures that have aroused most public anxiety - it
is the government's new power to track, secretly, what people read,
research and borrow in public libraries. For the past two years, many
libraries have had wall signs warning patrons that the library cannot
guarantee their privacy, and may be required to hand information on them
over to the FBI.
Much of the anger at this has come not from urban liberals, but from
conservative rural communities. Robert Reich, who was labour secretary
to President Clinton, told me that the library issue has united ordinary
people, libertarians and civil liberties activists. "It's become
symbolic of the entire effort to watch us," says Reich. "There's
something very personal about library books, and it's too close to
George Orwell and the behaviour of totalitarian governments. Americans
guard their privacy with a tremendous sense of righteousness and
indignation. We hate big government. This country was founded on a
suspicion of it."
The library issue has become so emotive that the government has been
forced to respond. Last month, the US attorney general, John Ashcroft,
went on a nationwide tour, in front of carefully selected audiences, to
defend the Patriot Act and to make the case for further extensions of
it. Exasperated by the libraries question, he finally declared
information he had refused to give to Congress, and said the powers had
never yet been used. But no one knew whether or not to believe him. The
libraries' own survey, a year earlier, had shown that at least 178
libraries had been visited by the FBI. And no librarian could publicly
confirm or challenge what Ashcroft claimed, because, as with all the
subpoenas served under the Patriot Act, it is illegal for the recipient
ever to reveal that they have received or complied with one.
As 11 September 2001 recedes and doubts grow over the Iraq war, a
divergence is emerging between the powers the government seeks and those
the public and the legislators are prepared to let it have. Recent
government proposals have been so outrageous that the US Senate has made
clear that it will never support them. Senators were appalled when, as
part of a proposed new act termed Patriot II, Ashcroft sought the power
to strip citizenship from any naturalised American suspected of aiding
terrorism - a provision that could apply to anyone who was, say,
offering advice on peace negotiations to the Turkish Kurds. This summer,
too, the Senate voted to block further funding for several pieces of
legislation, including sneak-and-peek. And when the Department of
Justice suggested the creation of a mass spying programme, which would
have turned ten million Americans into informers on their friends and
neighbours, it was rejected by Congress without a dissenting voice.
But the administration isn't reining back; far from it. On the
anniversary of 11 September, George Bush claimed that "unreasonable
obstacles" in the law were impeding the pursuit of terror suspects, and
said the hands of law-enforcement officials must be untied. He wants an
expansion of the death penalty, and even fewer judicial restraints on
the police and security services. Fearful of rejection if he puts
forward a single bill - Patriot II - the measures are likely to be
attached piecemeal to other bills, in the hope they will pass on the
back of less contentious legislation.
The government's opponents argue that its tactics are wrong, and that
instead of carelessly creating new powers, it should have used existing
ones more effectively. After all, the 11 September hijackers were
spotted; it's just that the intelligence was not acted upon. What is
needed is a more focused approach, not a loose and expanding one. Robert
Reich points out that it is far from clear that intruding on civil
liberties is an efficient way of finding terrorists. Even with all the
resources available, the anthrax terrorist has not been found. Reich
argues that the current strategy will merely generate huge quantities of
useless information on so many people that it will be unusable.
Liberals and libertarians are nowhere near winning the argument. Only 22
per cent of Americans think too many civil liberties have been lost;
there is also little sympathy for the civil rights of foreigners, or of
undocumented immigrants. It is the civil liberties of mainstream America
that are of potential concern to the nation, not those of anybody else.
The price of that, as Reich says, is that America loses something
incalculable - the moral high ground, the right to assume any kind of
leadership and the chance to win the sympathies of those it is busy
detaining and expelling.
Some observers think the current situation is cyclical. In the 1940s,
there was a panic in which civil rights were removed from Japanese
Americans; in the 1950s, McCarthyism; in the 1970s, attacks on the
anti-war movement. Each time, the country went into a spasm and then
came to its senses. But others are less sanguine. In this electronic
era, the intrusive power that can be wielded by governments is so great
that one cannot be confident that it will disappear. Michael Ratner
warns that it will be hard for people to regain the liberties they have
lost. And Reich says we should all worry about the reaction when another
outrage takes place. What liberties will be demanded and surrendered
then?
What does this mean for us in Britain? What happens in America
influences the way our politicians think, and the context in which we
react. ID cards, national databases, the tracking of internet and phone
use, files on children: these all look almost reasonable compared with
America's readiness to create files on all its citizens. But we can see
which way the government's intentions are going, and it should be
resisted. We can see from the Hutton inquiry how ferocious the state can
be when someone gets in its way - and how powerless officials can be,
even when they are attempting to do the right thing and protect our
interests. We should not casually surrender more authority, knowledge or
power to that machine.
A month after 9/11, an American judge, Andrew Napolitano, wrote in the
New Jersey Law Journal: "In a democracy, personal liberties are rarely
diminished overnight. Rather, they are lost gradually, by acts of
well-meaning people, with good intentions, amid public approval. But the
subtle loss of freedom is never recognised until the crisis is over and
we look back in horror. And then it is too late."
It seems to me it is no longer enough to leave the defence of our
freedoms to the pressure groups.
Copyright: The New Statesman. UK.
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