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Restoring the Fourth Amendment: How We, the People, Can Win Over Washington
Despite promises of change

Restoring the Fourth Amendment: How We, the People, Can Win Over Washington

Despite promises of change

Despite promises of change, the Obama administration has proven itself either unwilling – or unable – to shift the paradigm driving increasingly invasive surveillance or increasingly pervasive profiling according to race, religion and national origin. Nearly halfway through the Obama administration’s term, the battle to banish the Bush administration’s policy legacy remains largely unfought, let alone won.

But this is no time for progressive and libertarian constitutionalists to throw in the political towel. While “change you can believe in” may have been a premature promise from our president, we at the grassroots enjoy ample opportunities to shift the landscape in DC.

Whether concerned by government spying or the guilt by association apparent in profiling Latinos, African-Americans, Muslims, Arabs and South Asians for various so-called “signature crimes,” limits on local law enforcement authorities offer the potential to galvanize solidarity among communities of color. Measures restricting domestic intelligence operations can also attract the support of libertarians – including some elements of the Tea Party – disaffected by the Washington consensus favoring expanding executive power.

Three Threats to the Fourth Amendment: Mass Surveillance, Profiling and Infiltration

The Fourth Amendment has long limited the authority of government to arbitrarily interfere with the lives of law-abiding Americans or to monitor us in secret. That limitation has taken the form of a requirement that officials or police investigators establish individualized suspicion before detaining, searching, interrogating or arresting someone. The importance of individualized suspicion grows even more apparent in light of the First Amendment’s protections for freedom of association, freedom of speech and free exercise of religion – all of which independently restrict government scrutiny on the basis of group (i.e., nonindividual) characteristics.

FBI official Brett Hovington claimed recently, “communities have to be accountable for the actions of community members.” While his suggestion focused on preventing the indoctrination of youth rather than its implication favoring collective guilt, his remarks could not be more offensive to the vision on which our founders built this country. Over the past decade, the constitutional requirement that law enforcement authorities respect individualized suspicion has withered under assaults from two opposite directions.

Dragnet surveillance subjects literally everyone to surveillance, without any pretension of suspicion. For instance, the Terrorist Surveillance Program (TSP) that monitors your emails and phone calls remains cloaked in secrecy and is so aggressive that (despite the president’s vote as a senator to authorize it in 2008) it has been rejected by every federal court to have ever reviewed it on the merits. And the TSP is merely one program among many.

In contrast, profiling impacts specific communities – while similarly discarding the requirement that suspicion be individualized and, instead, extending suspicion and guilt on the basis of association, race or religion. Even internal government watchdogs have documented profiling: the Department of Homeland Security (DHS) inspector general issued a report this spring documenting profiling pervading the 287(g) local enforcement program. The New York Police Department (NYPD) profiles African-Americans and Latinos unapologetically, claiming that by stopping African-Americans and Latinos nine times as often as whites, the NYPD’s “stop and frisk” program has collected useful intelligence data even if it has failed to deter or reduce crime.

A third threat to the Fourth Amendment has also emerged, in the form of intelligence agents or paid informants infiltrating groups pursuing activities – like peaceful political organizing or religious practice – protected by the First Amendment. The FBI, the primary federal agency conducting these infiltrations, is a repeat offender: its abuses during the COINTELPRO era were well documented by Congress, in over 14,000 pages of testimony examined by the Church Committee.

Where based on well-founded concerns about a specific threat, infiltration burdening core First Amendment rights can conceivably satisfy the demanding scrutiny long required by courts: police must pursue a narrowly tailored means (targeted investigations based on concrete evidence) to securing a compelling government purpose (public safety).

But where infiltrations dig for unknown threats – or worse yet, actively create them, as they have in most high-profile “counterterrorism” prosecutions – they cannot justify violating so crucial a constitutional maxim as the presumption of innocence. Investigative infiltration effectively presumes guilt and multiplies that offense by extending it on the basis of association.

Solidarity Among Communities of Color

Racial and national origin profiling impacts not just a single vulnerable community, but all of them.

On the one hand, different federal agencies pursuing distinct agendas marginalize different ethnic groups: US Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) prey on Latinos in the war on immigrants; CBP and the FBI target Muslims, Arabs and South Asians; and the FBI and the Drug Enforcement Administration (DEA) marginalize African-Americans. On the other hand, at the local level, the various forms of profiling are all linked to the activities of local police departments.

According to even internal government watchdogs, Latino Americans have been preyed upon by local law enforcement in the context of enforcing federal immigration law under the controversial 287(g) program and the misnamed “Secure Communities” initiative. African-Americans have long suffered the brunt of the failed war on drugs. And Muslims, Arabs and South Asians are increasingly targeted not only by federal authorities, but also state and local agencies collecting domestic intelligence in cooperation with fusion centers, Joint Terrorism Task Forces, and other collaborations between local and federal law enforcement agencies.

Arizona’s latest abuses are hardly the first example and, unfortunately, there will likely be more. With copycat bills introduced in Minnesota and South Carolina – and numerous other states considering them – the metastasis of profiling is well under way.

Because state and local police are increasingly involved in federal initiatives related to immigration or intelligence collection – both of which have led to rampant profiling – communities across the spectrum of colors share aligned interests in imposing legislative limits.

Transpartisan Support

I’ve written before about how principled political movements can find opportunities to collaborate (even from seemingly opposing ends of the political spectrum) and gain traction by defending liberty principles offended equally by the major political parties. No policy arena is riper for this sort of transpartisan collaboration than civil liberties.

Put simply, privacy and constitutional rights matter at least as much to libertarians and the Tea Party as they do to progressives. Of course, some elements of the conservative base are (if not outright racist, at least) hostile to communities of color. Others, however, themselves come from communities of color. More still are more committed to privacy than to vitriol.

Those political forces are ripe for outreach from communities of color seeking limits on local law enforcement authorities. By aligning activism seeking privacy from dragnet surveillance, on the one hand, alongside organizing in favor of limits to stop racial profiling, on the other, progressives and libertarians can help find common cause – and daylight to push back on the inertia in Washington that continues to eviscerate the Constitution.

One Model of How to Push Back

Justice Brandeis spoke of how “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Arizona has done so and its experiment has already proven an abject failure: with boycott resolutions spreading like wildfire, the state is inviting catastrophic economic costs as the ironic price of its commitment to avarice and lawlessness.

While boycott resolutions send a signal of condemnation, however, communities seeking transpartisan solutions to our nation’s constitutional crisis can pursue far more forceful options.

For instance, proposed reforms developed by the Bill of Rights Defense Committee (BORDC) create enforceable protections to stop and prevent future racial profiling as it impacts each of the several communities vulnerable to law enforcement excesses. BORDC’s reforms also restrict domestic intelligence collection (local spying) operations.

By combining these seemingly disparate elements in their grassroots campaigns, organizers at the local level can build broad coalitions across not only African-American, Latino, Muslim, Arab and South Asian communities, but also libertarian allies who share concerns about the erosion of the Fourth Amendment.

Reforms to stop profiling also help law enforcement. First, any effective anti-profiling regime requires transparency into police operations, which can help rebut claims of profiling where police do not engage in it. Moreover, by enabling police officers to build trust among communities that would otherwise fear them, anti-profiling measures remove disincentives that otherwise prevent information about crime from being reported to police. As the president himself recently said, Arizona’s law threatens not only “to undermine basic notions of fairness that we cherish as Americans, [but also] the trust between police and our communities that is so crucial to keeping us safe.”

What’s at Stake

Civil rights coalitions coalescing around the country can potentially secure several opportunities. First, rights eroded by the wars on terror, drugs and immigrants can be restored on a city-by-city basis, by removing state and local agents (who vastly outnumber their federal counterparts) from the domestic spying apparatus and imposing limits to stop profiling.

Second, movements securing local policy changes will send overdue signals to Congress suggesting the passage of federal legislation that could help address these issues, like the JUSTICE Act (which would fix many excesses of the Patriot Act and other surveillance programs), the End Racial Profiling Act and comprehensive immigration reform.

Finally, the most important thing that these movements can do is build coalitions across communities that share interests in civil rights and spur disaffected populists to action. As the administration’s political timidity has dashed the hopes of progressives after the 2008 election, the Obama roots have faded as a political force, out-flanked by a Tea Party that has skewed the debate in Washington (often in perverse ways inimical to the Tea Party’s own interests, which include privacy and ending government spying).

With 2010 finding our government institutions tone deaf and disengaged on addressing our mounting constitutional crises, there have been few riper times for a transpartisan political offensive. And while DC may lie beyond the reach of frustrated activists still waiting for “change we can believe in,” we can win campaigns at the local level.

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