Paris and free­dom

More gov­ern­ment sur­veil­lance only pro­duces a false sense of se­cu­rity

The Washington Times Weekly - - Commentary - By An­drew P. Napoli­tano

The tragedy in Paris last Fri­day has re­gret­tably been em­ployed as a cat­a­lyst for re­newed calls by gov­ern­ments in western Europe and even in the United States for more cur­tail­ment of per­sonal lib­er­ties. Those who ac­cept the trade of lib­erty for safety have ar­gued in fa­vor of less lib­erty. They want gov­ern­ment to have more author­ity to in­trude upon the daily lives of more in­no­cent peo­ple. Their tar­gets are the free­doms of speech and travel, and the right to pri­vacy. Their goal is pub­lic safety, but their think­ing is flawed.

The clash be­tween lib­erty and safety is as old as the repub­lic it­self. The United States was quite lit­er­ally con­ceived in lib­erty. In the Dec­la­ra­tion of In­de­pen­dence, Thomas Jef­fer­son painstak­ingly listed the ills and evils of the Bri­tish gov­ern­ment’s ad­min­is­tra­tion of the Colonies. There were no com­plaints about the ab­sence of pub­lic safety; rather, Jef­fer­son’s “long train of abuses” cat­a­loged the Bri­tish gov­ern­ment’s in­ter­fer­ence with the colonists’ per­sonal lib­er­ties.

What has made the Dec­la­ra­tion so en­dur­ing and unique in world history is its un­am­bigu­ous em­brace of the nat­u­ral law as its ex­pla­na­tion of the ori­gin of our rights. The Bri­tish king thought he reigned by the will of God — the so­called divine right of kings.

Jef­fer­son, in­flu­enced by the Bri­tish philoso­pher and po­lit­i­cal the­o­rist John Locke, turned that be­lief on its head. He ar­gued that our lib­er­ties are nat­u­ral, even in­alien­able, be­cause they stem from our hu­man­ity, which is a gift from God. How could the same God have given us nat­u­ral, in­alien­able per­sonal free­doms and also have given the king the nat­u­ral right to in­ter­fere with those free­doms?

The Dec­la­ra­tion’s an­swer is the pro­found re­jec­tion of the moral le­git­i­macy of any gov­ern­ment that lacks the con­sent of the gov­erned, and its ar­tic­u­la­tion of the Judeo-Chris­tian ethic of valu­ing hu­man life, and its ac­cep­tance of the be­lief that hu­mans possess in­alien­able rights “en­dowed by their Cre­ator.”

Notwith­stand­ing the val­ues of the Dec­la­ra­tion of In­de­pen­dence, big gov­ern­ment and petty tyranny reared their ugly heads al­most at the start of the repub­lic. In 1798, the same gen­er­a­tion — in some cases the same hu­man beings — that wrote in the First Amend­ment that “Congress shall make no law … abridg­ing the free­dom of speech” also en­acted the Alien and Sedi­tion Acts, which pun­ished speech crit­i­cal of the gov­ern­ment. Abra­ham Lin­coln locked peo­ple up for speak­ing out against the Civil War. Woodrow Wil­son locked peo­ple up for singing Ger­man beer hall songs dur­ing World War I. FDR locked peo­ple up just for be­ing Ja­panese-Amer­i­cans in World War II. All of this was later con­demned by courts or Congress — and surely by en­light­ened pub­lic opin­ion.

It is in times of fear — whether gen­er­ated by out­side forces or fo­mented by the gov­ern­ment it­self — when we need to be most vig­i­lant about our lib­er­ties. When peo­ple are afraid, it is hu­man na­ture to ac­cept the cur­tail­ment of lib­er­ties, whether it be speech, travel or pri­vacy, if they be­come con­vinced that the cur­tail­ment will some­how keep them safe.

But if Jef­fer­son and all the history and tra­di­tion of Amer­i­can cul­tural and le­gal thought have been cor­rect, th­ese lib­er­ties are nat­u­ral rights, in­te­gral to all ra­tio­nal peo­ple. I can sac­ri­fice my lib­er­ties, but I can­not sac­ri­fice yours. Per­sonal lib­erty is sub­ject only to due process, not ma­jori­tar­i­an­ism. Stated dif­fer­ently, we can only morally and legally and con­sti­tu­tion­ally lose our per­sonal lib­er­ties when our per­sonal be­hav­ior has been ad­ju­di­cated as crim­i­nal by a jury af­ter a fair trial; we can’t lose them by a ma­jor­ity vote of our neigh­bors or our rep­re­sen­ta­tives in gov­ern­ment or a pres­i­den­tial ex­ec­u­tive or­der.

More­over, the Paris killings, the Fort Hood mas­sacre and the Bos­ton Marathon killings are all ex­am­ples of the coun­ter­in­tu­itive ar­gu­ment that the loss of lib­erty does not bring about more safety. It does not. Rather, it gives folks the im­pres­sion that the gov­ern­ment is do­ing some­thing — any­thing — to keep us safe. Be­cause that im­pres­sion is a false sense of se­cu­rity, it is dan­ger­ous; peo­ple tend to think they are se­cure when they are not. In fact, the gov­ern­ment’s read­ing of ev­ery­one’s emails and lis­ten­ing to ev­ery­one’s tele­phone calls is making us less safe be­cause a gov­ern­ment in­tent on mon­i­tor­ing our ev­ery move suf­fers from data over­load.

Be­cause gov­ern­ment is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the his­tor­i­cal phe­nom­e­non that lib­erty lost is rarely re­turned — as a new gen­er­a­tion ac­cus­tomed to sur­veil­lance at­tains ma­jor­ity, sur­veil­lance seems the norm — and you have a dan­ger­ous stew of tyranny. Just look at the Pa­triot Act, which per­mits fed­eral agents to by­pass the courts and write their own search war­rants. It has had three sun­sets since 2001, only to be re-en­acted just prior to the on­set of each — and re-en­acted for a longer pe­riod of time each time.

Since the Char­lie Hebdo mas­sacre in Paris in Jan­uary, the po­lice in France have been able legally to mon­i­tor any­one’s com­mu­ni­ca­tions or move­ments with­out a war­rant and with­out even any sus­pi­cion. To­day they can break down any door and ar­rest whomever they please. This past week­end, the French Cab­i­net de­clared that au­thor­i­ties can con­fis­cate all firearms in Paris. All that gives law en­force­ment a false sense of om­nipo­tence over the mon­sters.

Only good old-fash­ioned un­der­cover work — face to face with evil, what the pro­fes­sion­als call hu­man in­tel­li­gence on the ground — can fo­cus law en­force­ment on the bad guys. And an armed cit­i­zenry strikes terror into the hearts of would-be killers and even stops them be­fore they com­plete their hor­rific tasks. But don’t try telling that to the French gov­ern­ment. An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jer­sey, is a con­trib­u­tor to The Wash­ing­ton Times and Fox News. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.


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