No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. (Clause 39, Magna Carta)
No person shall… be deprived of life, liberty, or property, without due process of law… (Fifth Amendment to the Constitution of the United States)
Recent months have seen one-time expediencies dressed-up as new principles to frame the relationship between citizen and State. Three examples:
On the Friday after Christmas the Senate reauthorized broad executive authority for electronic surveillance and collection. The vote was 73-to-23 and extended for five years the Foreign Intelligence Surveillance Act. The House adopted the legislation earlier in the year. On Sunday the President the signed the extension into law. Proposed amendments, including those offered by Senator Wyden, that would have enhanced Congressional oversight of FISA were defeated. FISA was originally intended to provide due process for the gathering of intelligence on non-citizens and so protect the privacy of citizens. There has been increasing concern regarding how FISA methods now unintentionally — but perhaps quite widely — sweep up citizen communications as well.
According to a December 13, 2012 Wall Street Journal report, there may be good cause for concern. In an exclusive investigative report, Julia Angwin found that new Department of Justice guidelines, “now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation. Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.”
Meanwhile the White House is, according to several sources including Presidential adviser John Brennan, developing a legal and procedural framework for the deadly use of drones. Addressing the use of drones during an October 18 appearance on “The Daily Show,” President Obama said, “One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.” According to a May report in the New York Times, “Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.” Among the President’s decisions, presumably, was the targeted killing of Anwar al-Awlaki, a US citizen who was killed by drone-delivered Hellfire missiles on September 30, 2011 and his sixteen year-old son, also born in the US, who was killed in another drone attack two weeks later. Both citizens were killed in Yemen.
The predominant motivation in each instance above — and others — is the protection of the American people and nation. There is no imminent threat of Orwellian intention or intervention.
In each of these examples legislators and the executive are attempting to develop due process that is appropriate to their understanding of the present challenge. (The judicial branch is poised to soon rejoin consideration of the issue.)
Nonetheless while it is, I suspect, the specific intention of no one, the space where individual liberty adjoins civil authority is being incrementally reshaped. In the Anglo-American tradition there has long been in both theory and practice the presumptive primacy of individual initiative, what Blackstone termed “the absolute rights of man.” The balance is shifting toward a presumed ability by the government to maintain order.
Perhaps this is the inevitable outcome of more and more diverse individuals living in dense proximity to each other. Perhaps it is a prudent response to demonstrated risk. Perhaps it reflects an emerging social consensus that liberty is less valued than previously. Or we might be in the process of redefining liberty. These shifts might even be the accidental consequence of what Nassim Taleb has termed “naive interventionism”. The preference, even obligation, to “do something” over doing nothing, even when the doing is non-productive or counter-productive.
Whatever the cause, the pattern can be perceived and seems to be persisting.