Is America Becoming a Police State?

It is astonishing that the Supreme Court, whose role it is to defend the Constitution, could have voted to allow strip searches of any detainee who is being placed in the general prison population, even for minor offenses. What happened to the 4th Amendment?

The right of the people to be secure in their persons...against unreasonable searches and seizures, shall not be violated...

What could be clearer? What could be a more unreasonable search than allowing the police to apprehend someone for walking on posted grass in a public park or failing to come to a complete stop at a stop sign and strip them naked to examine their body cavities? Because the ruling does not discriminate between someone with a violent rap sheet and someone who was nabbed for letting their dog off the leash.

The 5-4 decision turned on Justice Anthony Kennedy’s remarkable rationalization for ignoring the 4th Amendment:

Experience shows that people arrested for minor infractions have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete examples. Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had “2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills” taped under his scrotum. (Kennedy, p. 14-15)

So, to catch the few, the rights of all should be compromised, says Kennedy. He has justified a huge expansion of police power with the example of someone smuggling into a jail those deadly weapons, cigarettes and cash, and with an anecdotal case — and for that matter an anecdote about a man secreting items that are also essentially harmless. In the actual case before the Court, the defendant was set free and all charges were dropped.

Not three months ago, the Supreme Court voted unanimously to forbid law enforcement from attaching without a warrant a GPS tracking device to the cars of suspects in order to follow their meanderings, basing their ruling on the same 4th Amendment that the strip-search ruling now ignores. Wrote Justice Antonin Scalia, Ttat amendment’s protection of "persons, houses, papers, and effects, against unreasonable searches and seizures" extends to private property such as an automobile. An automobile but not a person’s body? It is difficult to make sense of the Court’s thinking.

But the GPS ruling will hardly make a difference, it would seem. This recent report in the New York Times says that, while police may no longer attach GPS devices to cars, all over the country they are using cellphone tracking without benefit of court oversight, with phone companies capitalizing on the business and offering added services.

There is a truism that if you give authority a power, that power will be used, and will likely be misused and overused. That’s what happened after America’s panicked response to 9/11 when we unhesitatingly threw away a passel of the civil rights that were so much the theme of our lectures to the rest of the world about our model society.

One section of that statute passed by Congress with the Orwellian name of USA Patriot Act (which might better have been called the Bin Laden Act, so successfully has it diminished American civil liberties) allowed federal agents to issue “national security letters” or “administrative subpoenas” — that is, subpoenas issued on their own, not by a court — that permitted the F.B.I. secretly to tap telephones, eavesdrop on e-mail, and invade homes to haul away private information: computers, financial documents, medical records, anything found. If you are aware of the home invasion, you are disallowed from telling anyone, even a lawyer, else face prison. Free speech repealed. Due process repealed.

Obviously that’s a law that should be used with extreme care. Instead, in 2007, the Justice Department found that the F.B.I. had routinely violated the standards, issuing thousands of “exigent” or emergency letters — broad sweeps of citizens where no emergency existed to see what might turn up in “data mining”.

We can expect the same sort of reports from all across the land as police abuse their new unchecked right to strip-search for little (and, you can bet, prurient) reasons.

The Patriot Act is still with us. Ten years on, it keeps getting renewed. Obama gave it four more years of life in May of 2011. The truth is that 9/11 and a “war on terror” that has no definable end gave government an excuse without end to suspend civil liberties. What better example than this execrable law that President Obama just signed on New Year's Eve that authorized indefinite detention of Americans in military prisons without trial.

risk aversion

Bernard Harcourt, political science department chair and law professor at the University of Chicago, calls the new strip-search permissiveness “police-state logic…that seeks to eliminate, to absolutely eradicate and purge any and all security risks, no matter how small they might be”.

He’s right. To eliminate risk is to shoot first and ask question later. So police across the country have increased the use of Tasers — stun guns that deliver an agonizing electrical shock — even when it’s just a woman complaining about a traffic stop in this segment on “60 Minutes” last.

It was the same for shutdowns of Occupy Wall Street demonstrations last fall. Without hesitation, police across the country employed the new weapons in their arsenals to discourage "the people peaceably to assemble" that was once guaranteed by the 1st Amendment. Evidence of physical provocation by Occupiers were few, non-violence being key to their winning public support, but the police in several cities went straight to tear gas, pepper spray and beatings. The risk being eliminated is the urge by people to take to the streets to defend their rights. Glen Greenwald at Salon.com said it best:

”Every time the citizenry watches peaceful protesters getting pepper-sprayed — or hears that an Occupy protester suffered brain damage and almost died after being shot in the skull with a rubber bullet — many become increasingly fearful … in general of exercising their rights in a way that is bothersome or threatening to those in power. That’s a natural response, and it’s exactly what the climate of fear imposed by all abusive police state actions is intended to achieve: to coerce citizens to ‘decide’ on their own to be passive and compliant.”

Where was the Obama Administration in the strip-search case? Fully on board. Cousin to this administration’s preference for suppression of 1st Amendment rights (reported in this article) is its apparent taste for getting rid of the 4th Amendment as well. The administration filed an amicus brief urging a blanket strip-search policy for all inmates entering the general prison population. Echoing Professor Harcourt’s total elimination of risk and Justice Kennedy’s willingness to violate everyone’s rights to look for the few malefactors, here’s Justice Department lawyer Nicole A. Saharsky: “When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps.”