Monday, September 12, 2011

The Politics of Universal Criminality

By Tim Dunkin

Pretty much anybody who is paying the least bit of attention can see that the United States of America is slipping inexorably toward a police state. The courts have systematically gutted our 4th amendment right to be secure in our persons, possessions, papers, and property. Militarized SWAT teams abound in police departments from the largest cities down to the most backwoods hamlets. Even government agencies for which the need for automatic weapon-toting hit teams is not immediately apparent, such as the Department of Education and the Bureau of Land Management, have and employ these teams for raiding citizens in their homes. Americans are being desensitized to having their privacy removed by the TSA searches at airports. And so it proceeds, increasing with each passing year.

John Whitehead has written a great article about one particular manifestation of this – the VIPR (Visible Intermodal Prevention and Response) teams that the TSA is using more and more. These teams, paramilitary in nature, form the nucleus of the "expanded role" that the TSA leadership envisions for its agency. This involves extending the reach of TSA interventions and checkpoints beyond airports to other transportation-related entities, such as buses, trains, and even our highway system itself (as this article demonstrates is already starting to happen), with an eventual "goal" of "fighting terrorism" by establishing security checkpoints at all "soft targets," including malls, restaurants, and schools (a scope which, to put it mildly, would require the vast expansion of the number of VIPR teams and associated personnel to man them). VIPR teams have already been used for providing additional "security" at some high-profile public events; they've been used to conduct raids at Amtrak stations during which every single passenger and their luggage was searched, without a warrant of any kind. TSA wants to extend this to pretty much every place where people might use any mode of transportation or might congregates in public in any numbers.

Let's explore the ramifications of that for a moment.

If TSA gets control over any mode of transportation, including being able to make random stops and create arbitrary checkpoints on public roads, then the right to travel freely will disappear completely. All of those people who smugly assure themselves that they're escaping the present troubles with the TSA by simply refusing to fly are in for a nasty shock. Drive, fly your private jet, whatever – you're still going to get it. After all, someone can fly a private jet into a building as easily as they can an airliner, so the "logic" will go. And if the TSA can search you, they can ban you. Imagine being on the computerized "no drive" list where you're not even allowed to operate your own vehicle on a public road – perhaps enforced by using some of that snazzy new GPS technology that the police seem to love so much. That's a level of control over private movement that the Soviets and the Nazis only dreamed of.

Further, yet another aspect of our First Amendment – the freedom to assemble – stands in danger. Once again, if they succeed in setting up search points as a condition for entry into anything from a football game to a political rally at city hall, then what happens if you're on the "flagged" list, maybe because you're one of those constitutionalist "troublemakers"? You don't get to assemble. You can be kept out of basically any place where people would congregate for any reason whatsoever.

And the justification for all this, naturally, would be the "need" for "security," since you never know where terrorists could strike. In fact, that is specifically the justification for the expanded presence of VIPR given by the TSA. Ironically, the greater threat to our liberties and lives is not Islamic terrorists, but our own government whose destruction of our lives and liberties is a result of the so-called need to "protect" us from those terrorists.

But it's always that way when government steps in to "help." It's a truism of modern American history that whenever the government decides that it needs to fight a "war on (fill in the blank with some nebulous abstraction)," somebody, or a lot of somebodies, is going to lose some liberty. The "War on Poverty" did nothing to end poverty. Instead, it massively expanded the taxation and confiscation power of government over the middle and wealthy classes in America, thereby destroying economic liberty, while simultaneously enslaving millions in the underclass to lives dependent on a government check, with all the "intervention" that comes with it. The "War on Drugs" hasn't solved the drug problem in America, but it has served to destroy the 4th amendment and was the proximate justification for the expansion and militarization of police apparatuses at all levels. So it is with the "War on Terror," whose actual utility we can only speculate since we'd never know how many, or even if, any protections have actually "stopped terrorists" (after all, how do you quantify something that doesn't happen?) As we've seen, this "war" has done a lot of destroy our rights to privacy, free travel, free expression, and numerous other natural liberties.

Some, such as Kate Hanni, whom Whitehead quotes at the beginning of his article, speculate that the purpose is to control us by fear. Make people afraid of terrorists, or drug dealers, or whatever else, and they will voluntarily cede power to those in authority. This argument certainly has merit, and was understood by Benjamin Franklin when he observed that people who give up liberty to have security deserve neither. However, I think the reason why the government uses these methods – and VIPR teams are only one aspect of the increasingly unnecessary heavy hand that government agencies are using – goes beyond just cowing people with fear of "the other." These involve bringing people into fear of their own government, so that compliance can be coerced.

Or, as Mr. Whitehead noted, the purpose of all this is to "Dominate. Intimidate. Control."

And what better way to control people than to force them into a position where they will, almost of necessity, become criminals? Perhaps the most brilliant and succinct summation of what big government really wants was made by Ayn Rand, through the vehicle of Floyd Ferris, arch-bureaucrat in Atlas Shrugged,

"Did you really think that we want those laws to be observed? We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against . . . We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted [Frederick Mann: Obfuscation of meaning is a key element of the con games bureaucrats and politicians play.] - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with."

That right there in a nutshell is why the government wants to expand random VIPR searches to our highways and byways, to our stadiums and shopping malls. This is why the US code and the legal codes of every single state in the union require a forklift to move. This is why every single federal agency in existence desires, obtains, and then ruthlessly uses the power to make "administrative rules" that are unappealable and unaccountable. The more rules on the books that microregulate every aspect of our lives and activities, the more chances there are that you will, somewhere and at some point, slip up and break one of them. The intention is for you to end up like Alan Taylor, a small business owner in Sparta, Michigan who became a lowdown, dastardly criminal when he unknowingly violated environmental regulations because the expansion of his business' parking lot was "filling a wetland," an unintended consequence. Mr. Taylor was socked with two misdemeanor criminal charges and all kinds of trouble and hassle that he has had to deal with for over three years, as well as this going on his "permanent record."

How about Ocie Mills and his sons, with all the permits they thought they needed to build their waterfront dream home in 1986, only to be thrown in the slammer for "disturbing a wetland" that had never even been ruled an official "wetland" to their knowledge?

Government wants us to break laws – that's why it makes so many of them, makes them so vague and convoluted, and generally refuses to inform us when they're made. I realize that it should be the responsibility of citizens to know and understand the laws – but that principle applies best when the laws are few and written for the layman to understand, which is what was originally intended. However, when the US code printed out can literally fill a good-sized room and is all written in such dense legalese that even most lawyers have difficulty understanding it, how can the average citizen, who has other things to do besides spend his entire life thumbing through the US code (and who knows, there may even be a regulation in there prohibiting us from thumbing through the US code, punishable by a $25,000 fine and not less than two years in jail…), ever possibly know what he can potentially be harassed and persecuted for doing? Especially when there are so many stupid little non-intuitive regulations in there that were inserted at the behest of some obscure special interest advocacy group who wined and dined a congressman? Did you know that it's illegal to bring Honduran bonefish into the country, punishable by a huge fine and jail time? It's not even that the US code directly says so, but because the US code says that the animal and vegetable removal laws of other countries with whom we have such treaties are enforceable in the US, you can even be thrown in jail for breaking another country's laws, however unintentionally.

If the government gets to search us randomly on the highways or at sporting events, without our consent and without a warrant, that just multiplies the opportunities to find a reason to arrest, fine, or at least "put on a watch list." And what if they actually do get around to creating a "no drive" list to "protect" us on our public roads? Well then, if you want to go to work or go on a family vacation, you'll run the risk of becoming a criminal by driving when they told you not to. You're a criminal if you grow your own food and give it to your neighbor. You're a criminal if you accidentally harm a "wetland" (and who knows which definition of that term will be applied). You're a criminal if you spank your child. You're a criminal if you don't have the proper width of tinting on your car's windshield. And so on, ad nauseam. It's all about putting you and I in a position where we can be prosecuted, fined, watched, put on a list, stored in a computer for future reference, and have it all hanging over our heads at all times.

What makes this all work is that the distinction between criminal intent and the lack thereof is generally not taken into account with these bureaucratic regulations and administrative rules. It doesn't matter if you even knew that the parking lot you were adding to your business property was going to harm a wetland, or that you even knew said wetland was even there. You get dinged regardless. Coupled with this is the increasing lack of distinction between things that are malum in se (wrong in itself) and malum prohibitum (wrong because they've been prohibited). This state of affairs helps to confuse the average person and make them more susceptible to breaking some regulation because it is not always obvious why, or even that, things that are malum prohibitum are that way. Things like murder or rape are malum in se because it is intuitively obviously to any reasonable person that they're wrong. It's not so intuitively obvious, however, why removing an old Indian arrowhead you found in a streambed in a National Park would merit stiff fines and jail time. Pretty much all modern government lawmaking, however, has involved things that are malum prohibitum – only illegal because of some arbitrary decision to make them so, rather than because they involve some gross violation of moral or public principle. Obviously, things like murder, rape, robbery, fraud, extortion, etc. etc. have been illegal for as long as we've been around. The new laws, almost necessarily, have to involve adding layer upon layer of prohibitions which have little relevancy to natural law and obvious right or wrong.

Ultimately, things are going to come to a head. Either we get legislators who get serious about not just cutting taxes or trimming spending, but instead hacking off entire sections of the US code root and branch, or we're going to see an adverse breakdown. We need representatives who will remove laws, rather than adding them; who will get serious about rolling back the march of malum prohibitum and "preemptive security" in our governing system. If we don't, I fail to see how the present system can continue. Anybody even remotely liberty-loving is simply going to grow more frustrated, angry, and eventually violent at the arbitrary, abusive treatment they're receiving from their own government. The government, in turn, is going to respond by increasing its heavy-handed treatment to clamp down on the "troublemakers" and "terrorists" that its policies are breeding. Around and around in a vicious circle that could eventually end in the complete breakdown of the system, with all the associated bloodshed and barbarity that typically accompany such breakdowns. I suspect that nearly all reasonable people would not want for that to happen. The way to avoid it is to simply respect the natural liberties of our people and roll back the march to the police state.