Dispatches from the Creation Wars

This essay is a perfect example of why I find John Whitehead alternately frustrating and praiseworthy. On the one hand, he defends John Freshwater’s madness in Ohio and wants a lower wall of separation of church and state than I do (though not nearly as low as many of his fellow Christian legal activists). On the other hand, he is one of those rare conservative civil libertarians who genuinely cares about the Bill of Rights and the growth of executive power. That’s why he was one of the four conservatives who formed the American Freedom Agenda. And what he writes here about the FBI and the growth of unchecked surveillance power is spot on.

Listen closely and what you will hear, beneath the babble of political chatter and other mindless political noises distracting you from what’s really going on, are the dying squeals of the Fourth Amendment. It dies a little more with every no-knock raid that is carried out by a SWAT team, every phone call eavesdropped on by FBI agents, and every piece of legislation passed that further undermines the right of every American to be free from governmental intrusions into their private affairs.

Meanwhile, President Obama and John Boehner are exchanging political niceties on the golf course, Congress is doing their utmost to be as ineffective as possible, and the Tea Party–once thought to be an alternative to politics as usual–is clowning around with candidates who, upon election, have proven to be no better than their predecessors and just as untrustworthy when it comes to protecting our rights and our interests. Yet no matter how hard Americans work to insulate themselves from the harsh realities of life today–endless wars, crippling debt, sustained unemployment, a growing homeless population, rising food and gas prices, morally bankrupt and corrupt politicians, plummeting literacy rates, and on and on–there can be no ignoring the steady drumbeat of the police state marching in lockstep with our government.

Incredibly, with little outcry from the populace, the lengths to which the government will go in its quest for total control have become more extreme with every passing day. Now comes the news that the FBI intends to grant to its 14,000 agents expansive additional powers that include relaxing restrictions on a low-level category of investigations termed “assessments.” This allows FBI agents to investigate individuals using highly intrusive monitoring techniques, including infiltrating suspect organizations with confidential informants and photographing and tailing suspect individuals, without having any factual basis for suspecting them of wrongdoing. (Incredibly, during the four-month period running from December 2008 to March 2009, the FBI initiated close to 12,000 assessments of individuals and organizations, and that was before the rules were further relaxed.)

This latest relaxing of the rules, justified as a way to cut down on cumbersome record-keeping, will allow the FBI significant new powers to search law enforcement and private databases, go through household trash, and deploy surveillance teams, with even fewer checks against abuse. The point, of course, is that if agents aren’t required to maintain a paper trail documenting their activities, there can be no way to hold the government accountable for subsequent abuses.

These new powers, detailed in a forthcoming edition of the FBI’s operations manual, extend the agency’s reach into the lives of average Americans and effectively transform the citizenry into a nation of suspects, reversing the burden of proof so that we are now all guilty until proven innocent. Thus, no longer do agents need evidence of possible criminal or terrorist activity in order to launch an investigation. Now, they can “proactively” look into people and groups, searching databases without making a record about it, conducting lie detector tests and searching people’s trash.

Moreover, as FBI general counsel Valerie Caproni revealed, agents want to be able to use the information found in a subject’s trash to pressure that person to assist in a government investigation. Under the new guidelines, surveillance squads can also be deployed repeatedly to follow “targets,” agents can infiltrate organizations for longer periods of time before certain undisclosed “rules” kick in, and public officials, members of the news media or academic scholars can be investigated without the need for extra supervision.

And all endorsed by a president who, as an actual legal scholar, damn well ought to know better.