How Democracy Gradually Falls
Democracies falls when the very institutions responsible for checks and balances pass the reigns to a tyrant.
Unreasonable searches and seizures have become more spoken about the more the US Government felt its power threatened. In the past I explained the FBI relentlessly wiretapped the communications of anyone that was deemed a communist. Communists in the United States who emigrated to the US from Europe were known to be sympathetic to the USSR. It is public knowledge the US and the USSR nearly incinerated each other with nuclear weapons.
The FBI’s relentless history of warrantless wiretapping under J. Edgar Hoover’s reign as the first director of the FBI—a title he abused for over five decades.
The US Government’s abuse of surveillance technology arose once again after the September 11, 2001 attacks. Shortly afterwards the US Patriot Act was passed—allowing government surveillance of US citizens. Only after Edward Snowden’s NSA revelations in 2013 did the public become aware of the NSA spying on its own citizens.
In his book Nothing to Hide Daniel J Solove recounts a potential case of unreasonable search and seizure that took place in 2005. In that year the London subway of New York City was bombed. The New York Police Department in response began random searches of passengers’ bags. All searches were made without warrant.
The New York Police Department was sued for this behavior. In MacWade vs Kelley, the US Court of Appeals actually concluded the search was lawful under the Fourth Amendment. However, the public was not impressed with the Court’s analysis. The court assumed law enforcement was making the right decision as it has “unique understanding of, and responsibility for, limited public resources, including finite number of police officers.” The court also refused to assess whether the searches were effective in detecting terrorist attacks.
Yet the truth is the random searches would only sample a tiny fraction of all luggage carried on the New York subway system. There are 4.5 million passengers who ride on New York subways every weekday. The city has more than 450 subway stations. Saying that random searches were a tiny fraction is, in fact, an understatement. The chances of finding anything are ridiculously low. The only saving grace of this program is that a person can choose to walk away rather than be searched. But that does pose a problem: a terrorist can obviously see an officer in uniform and walk away in time before they are spotted.
Solove points out the court did not decide whether the searches would deter terrorists to a point significant enough to outweigh the cost against civil liberties. Solove calls this an act of deference. Like many security measures conducted by law enforcement they cost our privacy. Just as the judicial system was reluctant to investigate J. Edgar Hoover’s abuses of power so too are they reluctant to second-guess the judgement of security experts. The reasons why will suprise you. I bet some of you will think they are absurd.
Judges Question If They Are Competent in Assessing National Security
Judge Richard Rosner asserted the executive branch should be asked to assess matters of national security. Rosner even said judges “aren’t supposed to know much about national security”. A statement like that undermines the entire point of the judicial system conducting a check and balances on the other two branches.
The obvious issue with that is the executive branch is housed by exactly one person: the United States President at the time.
Although Rosner’s supporters acknowledged the US President has made mistakes in the past in this regard they still assert the executive branch is most trustworthy since “judges are generalists and the political institution that protects them from current politics also deprives them of information, especially information about novel security threats and necessary responses to those threats”.
This is why Rosner’s supporters argued that during state of emergencies the legal and judicial branches would be too slow to react in time to the emergency. Unfortunately this how tyrants arise throughout history. The term dictator is usually associated with the idea of a corrupt ruler but the proper definition is a person assigned power in times of emergency. Of course, that is how tyrants such as Julius Caesar, Napoleon Bonaparte, Vladimir Lenin, and Adolf Hitler arise to power. In the midst of the chaos of civil unrest do democratic institutions desperately give away the reigns of total control to one person to restrain public outrage. They are assigned whatever power necessary others in government deem one person can get done faster than an organized system with rigorous checks and balances can.
Of course, those checks and balances built into the legal and judicial system are the foundations of a democratic society. In this current situation although Rosner’s supporters unfortunately make a fair point that the executive branch would be able to react faster in states of emergencies that does not mean that is the ideal course of action to preserve a balance between national security and liberty.
Solove reminds us it is the duty of judicial courts to protect our constitutional rights—ensuring they are balanced against government interests. There are three steps the judicial branch takes to do that. First, the judicial branch checks the importance of a government interest. Second, the branch checks how effective a government interest is in protecting that interest. Third, the branch checks the degree to which said government interest can be achieved without violating constitutional rights.
So when the court fails to question the ethics of a security measure the government’s self interest in executing the security measure prevails. That’s why J. Edgar Hoover got away with wiretapping as much as the NSA got away with mass surveillance for over a decade.
Since world history is riddled with case studies of tyrants arising to power when the legal and judicial systems deem them worthy of having the final say on national security measures—the judicial system should definitely never assume the executive branch knows best by default. Solove reminds us it defeats the point of judicial review: to verify agents of government are acting in accordance with the law instead of blindly accepting their authority. In fact when judicial courts defer to the executive branch on national security measures they are simply letting the executive branch do the judicial branch’s work for them. It is ironic courts are deliberately abdicating their own constitutional power.
The US Government has truly tested the Fourth Amendment’s patience in their conduct of unreasonable search and seizures. Said to be an act against terrorism since the Red Scare, the ironic truth is ever since the State Department began collecting data on the number of Americans killed from terrorist attacks, including 9/11, was about the same as the number killed from lightning strikes, or by accident-causing deer, or by severe allergic reaction to peanuts.
It is human nature to pay the most attention to threats we have little time to prepare for. This is why news headlines of nuclear disasters influence more people to take measures to protect themselves than headlines on depression.
In the next article I will explain more on why No Deference Policy is Best for National Security