Paranoids Have Real Enemies, Part II: The Eye of Sauron

Steve Russell

Missed Part I? Click here.

Even if the tragedy on September 11, 2001 was not a conspiracy to arrogate more power to the federal government, it has still enabled exactly that. Americans have not betrayed the values they profess out of fear to this degree since the Cold War ended.

George W. Bush said of Al Qaeda, “They hate us for our freedom.” So did the Soviet Union. The former with a fundamentalist religion and the latter with a fundamentalist politics considered the U.S. soft and decadent. Any culture where the government does not bother to tell people what to think will appear decadent and foreign enemies often take the deep isolationist current in U.S. politics as softness, so the error is understandable.

What scares me about Mr. Bush’s diagnosis is what follows from it. If we take away our own freedom, they will no longer hate us. This is a bit like the way some Indians responded to zealous missionaries. I can name no Indian tribe that proselytized others, but plenty of our peoples tied their sacred ceremonies to success in war, which made a military defeat into a spiritual defeat.

Humans have always gravitated from the weak to the strong in politics and in religion, so those Indians who took up with monotheistic patriarchal desert cults were just acting the way humans act. So, too, when the U.S. responds to an attack from a fundamentalist ideology by empowering our domestic fundamentalist ideologues, the U.S. is just acting the way humans act.

Since 9-11, if you want to start a bank account, there’s a great rigmarole that did not used to exist to prove your identity.

Since 9-11, Canada and Mexico and the islands of the Caribbean save Cuba are no longer free to visit without a passport, a serious inconvenience to the tribal nations that straddle the Canadian and Mexican borders. Many tribes, including my own, have responded by coming into compliance with the REAL ID Act.

It was always a comparison point between the “free” U.S. and the “unfree” Soviet Union that the latter had an internal passport system. Attempts by the states to control interstate travel have been blocked by federal courts and the idea of a federal law to do the same was unthinkable. Then we got scared.

REAL ID, an original brainchild of Rep. James Sensenbrenner (R-Wisconsin) vests complete discretion in the Secretary of Homeland Security to define the purposes that will require a federally approved ID. Right now, those purposes are boarding commercial aircraft, visiting nuclear power plants, and entering many federal facilities.

The uses of the REAL ID are unlimited in the original act and entirely up to the Department of Homeland Security. The practical political limits on what Homeland Security can require will ebb and flow with the national fear level. I confess to some amusement that Oklahoma is among over 30 states and territories that do not comply with REAL ID and so I can do things with my tribal ID I could not do with an Oklahoma driver’s license.

Then there are the expanded powers of government in the centerpiece of anti-terrorism legislation, USA PATRIOT. Those who would ask what is patriotic about a law that makes hash of the Fourth Amendment don’t understand the naming conventions of federal laws.

For instance, it is the Bank Secrecy Act that makes it absolutely clear that the government can look at your bank records—which include credit card statements—without a search warrant.

During the Civil Rights Movement in the U.S., all the leadership was under unlawful electronic surveillance, but it was only at the very top of a few organizations—including the American Indian Movement—where the government planted informers, some of whom became agents provocateurs to justify their paychecks.

The legal difference in these two forms of surveillance is important. Electronic surveillance without a warrant was unlawful and therefore evidence derived from it could not be used in a criminal prosecution.

Government informers, on the other hand, produce news the feds can use for all purposes. The legal theory is that when you decide to trust somebody with your unlawful schemes, you know they can blow the whistle on you, so you will not be heard to complain if that happens.

USA PATRIOT changed a lot of that. The U.S. now has a fake court, created by the Foreign Intelligence Surveillance Act, which allows secret warrants based on secret evidence.

More important, data gathering within the U.S. has greatly expanded, giving the National Security Agency (fair disclosure: I worked for the USAF branch of NSA for over half of my military hitch) a domestic role for the first time.

The huge data munches by NSA are no threats to our liberties, allegedly, because they only collect “metadata” on every telephone call: Numbers called to and from, length of call. Not content. Not even who made the call.

As best I can tell, four hits in metadata on a number are enough, in combination with all the extant legal databases, to identify over 95 percent of individuals with a reasonable degree of certainty. If the metadata could not be traced to individuals, what would be the point of spending millions of dollars to store it?

If you consider your anonymity a part of your freedom, then take solace in the fact that to know everything is to know nothing. What keeps you generally anonymous is that Uncle Sam is in data overload.

Picture the federal government like the Eye of Sauron. It can see anything to quotidian detail but only if it focuses. Focusing is expensive and, at some point, requires human intervention, something mass data collection does not require.

All you have to do to remain invisible to your government is not put the Ring of Power on your finger, since you know the Ring of Power will instantly attract the attention of the Eye.

That is what we call in the law a “chilling effect” on First Amendment rights or, in the broader sense, political participation. The whole reason we dislike surveillance is that it shifts power from individuals to the government, keeping timid individuals from exercising the power they own in theory.

Democracy, though, has never been a practice suitable for the timid.

The tinfoil hats are wrong. The tragedy of September 11 was not a cruel hoax to justify creating the Eye of Sauron. Still, that was exactly the result. Paranoids do have real enemies.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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