The Liberties of the Subject

By Werther

Werther is the pen name of a Northern Virginia-based defense analyst.

The overwhelming balance of recorded history has been marked by despotism. When homo sapiens sapiens transitioned from hunter gatherer to agriculturalist, he gained literacy, solid dwellings, and other accoutrements of what is commonly considered civilization. But he experienced a sharp decline in personal liberty.

The reasons for this are commonsensical. Disputes between tribes of hunter gatherers could be resolved by one or the other simply pulling up stakes and relocating to a new territory, there being few material impedimenta to prevent them. A settled agricultural existence, on the other hand, implied permanent villages, granaries, and land boundaries to be defended against depredation. The need for defenses implied a national security state. Agricultural surpluses not only necessitated armed defense, but allowed a division of labor leading to policemen, soldiers, bureaucrats, and tax assessors, the latter of whom would confiscate a percentage of the harvest.

The evolution of labor conditions also implied a different mental outlook. The hunter gatherer was an independent contractor (if not a brigand) who ranged over extensive territory and worked alone or in small groups. The agricultural laborer, by contrast, toiled in one spot, making his comings and goings more subject to regulation.

If the land was not his, he became dependent on the Big Man's favor. Given the increased population densities in regions where agricultural societies developed, he could only rarely strike out on his own: the good land had been already taken, and game animals cleared or hunted to local extinction. [1]

With the rise of what Karl Wittfogel call "hydraulic civilization," [2] the screw of oppression turned once again against personal liberty. In order to build the extensive earthworks necessary for the state to survive the next drought or flood, the rulers of these proto-superpowers subjected their subjects to enforced toil and off-duty regimentation which rendered them no more free than so many draft animals.

It is unlikely the rulers of the states in the Valley of Mexico, the Nile, the Euphrates, the Ganges, or the Yang-Tze had much toleration for the complaints of their subjects, who were enslaved, enserfed, or otherwise regimented for the greater good as defined by the states’ rulers. These complaints, had they been permitted, would have constituted freedom of speech.

Nor would the rulers have given credence to a peasant's assertion that the interior of his crude dwelling, and the contents thereof, were inviolate from the inquisitiveness of the state. He, the peasant, simply had no rights a ruler was bound to respect (to paraphrase what a former Supreme Court Justice once said about slaves in a famous ruling in 1857); the only limit on a ruler's power over his subjects was the former's fear of rebellion should discontent overflow.

Of the two rights discussed thus far, freedom of speech and freedom from arbitrary search and seizure, the latter is fundamentally more important to human beings’ maintaining a status above that of mere hive animals. This is not intended in any way to disparage the desirability and necessity of free speech. But there are practical circumstances when free speech is not exercised by reasonable people – due to reticence, shame, or its merely being not worth the effort. Or when one is married.

Much obnoxious and exhibitionistic behavior is rationalized as free speech, while more urgent matters are suppressed: how many hourly employees feel free to say what they really think of their supervisors, and is the resultant lawsuit really covered by the First Amendment? But asinine reality TV blares on. Out of politeness or discretion, most intelligent people censor their opinions about politics, in-laws, bosses, and religion when they are in the public commons.

The inviolability of one's person, and one's dwelling, is more basic. What would the average person resent more: being told he cannot ask questions of the President of the United States at a staged event, or being ordered to be strip searched in public? Or, for that matter, have his house ransacked? That is the principle at issue. The lesser freedom is essential for political discourse, the greater freedom distinguishes us from dogs. [3]

Respect for privacy, for oneself and one's fellow citizens, is the benchmark of a sense of an individual self. The majority of psychologically well adjusted people believes that there are facts and circumstances about them that just do not bear the glaring searchlight of public revelation. Some things are simply private. At the same time, well adjusted people do not poke their noses unnecessarily into the lives of others, as much out of good taste and a low threshold of disgust as high principle. The snoop and the village Nosy Parker are butts of derision in popular lore.

How did this highly refined sense of individuation develop in the species, given the overwhelming pressures in the other direction? The pharaohs, emperors, and potentates whose mighty works arose between 30 degrees north latitude and the Tropic of Cancer seem to have had the weather gage: division and regimentation of labor as a means of increasing population density and thus state wealth were the wave of the future. A docile workforce certainly could not be secure in its homes, papers, and effects, the future Fourth Amendment to the Constitution notwithstanding. There was no profit in letting the proles be themselves.

Somewhere in isolated temperate regions, difficult to conquer militarily, there arose sometime after 1000 AD a contrary view. The Saxon theign, the Swiss cowherd swearing his oath at the Rütli, the deliberations of the Icelandic Allthing, were the beginnings of the idea of the liberty of the subject. [4] We may seek concrete reasons why these societies thought their inhabitants were above mere chattel, or we may ascribe it to miraculous happenstance. But it happened, and we should be grateful.

At some point, these societies developed the concept of an Über-law, or constitution, a law that not even a king could violate without punishment. Hence such magnificent works of poetry as the Magna Carta, the Declaration of Independence, and the Swiss Federal Charter. The concept of swearing allegiance to the principles embodied in the words on a piece of parchment, rather than to a king, should be familiar to most federal employees today, regardless of the willingness of some of them to engage in squalid black-bag shenanigans against the public trust and their own oath.

But constitutions, like laws, are not self-enforcing. For every Runnymede, there was a Star Chamber. For every United States Constitution, there was a Patriot [sic] Act. For every person who regards himself as an individual, there is another who has no self respect as a person, and who counts himself as a partisan of what he naively thinks is the home team, cheering on his side like a prole in the Circus Maximus in imperial Rome.

Where are we now, in the Year of Our Lord 2006? We will not reiterate in detail the recent newspaper bulletins which reveal that the present administration is ransacking the personal effects of United States citizens ostensibly in order to fight the so-called Global War on Terrorism. [5] We will merely make a few observations.

First, not only is "the president's program" (as the warrantless intercepts are called in the chaste corridors of the West Wing) an obvious example of lawbreaking, but so is the Patriot [sic] Act itself, which some observers profess to view as a legally authorized and legitimate vehicle for government intrusion into the lives of private citizens.

Section 215 of the Act addresses so-called National Security Letters, which involve a government search of libraries, credit agencies, health care providers, or any organization that keeps records on citizens. The organization served with such a letter is prohibited from speaking about it to anyone. This is the so-called "gag order," much discussed in House and Senate proceedings but thus far hardly discussed in terms of its ramifications.

A plain reading of the gag order shows it to be a clear violation of the right in Amendment I of the United States Constitution to "petition the Government for a redress of Grievances," which is commonly interpreted as the right to communicate with one's Member of Congress or Senator. This fact has somehow escaped the Blackstones and Perry Masons who populate the law commentary bailiwicks of the newspaper and television.

Second, given the scope of "the president's program," we are entitled to wonder how recess appointment to the position of United Nations ambassador John Bolton was so keenly interested in signals intelligence, and why the White House was so adamant in refusing the Senate access to documentation in relation to this fact.

Equally puzzling is the fact that in the campaign season of 2004, the White House knew every detail of the CBS story about the incumbent president's air national guard service and had a detailed refutation/cover story ready to be released as the story aired. Similarly surprising was how presidential advisor Karl Rove was able to develop a complex alibi to dodge a perjury indictment: almost as if he knew exactly what special counsel Patrick Fitzgerald knew.

Third, we are entitled to speculate (as U.S. citizens, are we not?) about the manifold increase in signals traffic that "the president's program" has vacuumed into the ravening maw of Fort Meade. Is there anyone there to translate it, assuming that it concerns speakers of Arab dialects, Farsi, Pashtun, and other exotic tongues? Are the putative translators competent or even loyal, or are they engaged in off-line operations to assist international arms smuggling and other black arts, as former FBI translator Sibel Edmonds attempted to tell us before her voice was stilled by government ukase?

Fourth, when asked in December by the press about examples of terrorist plots foiled by his program, President Bush declined, citing classification. Can anyone remember the last time the administration failed to take credit for capturing an alleged al Qaeda "kingpin," or neglected to hype even questionable cases like that of Jose Padilla? Perhaps "classified" means, in this context, that it does not bear scrutiny.

Fifth, we have been apprised that "the president's program" is an extremely sensitive program. So sensitive that not even members of the Congressional intelligence committees, let alone the public at large, are permitted to know everything about its operations. In that case, which foreign powers are allowed to share in its routine "take?"

Court historian Bob Woodward [6] has related how then-Deputy CIA director Bobby Inman, in the early 1980s, prevented the government of Israel from receiving the most sensitive aspects of American intelligence intercepts. His suspicions were well founded, given the Pollard affair. [7] Given the fact that Israel is not, under the present dispensation, a country to be denied anything, what facts about U.S. citizens that are swept up in the intercepts might they be privy to?

Or what about Mother England and the Special Relationship? Perhaps the United States Government feels obliged, by secret agreement or good sportsmanship, to share details about U.S. citizens’ lives with Tony Blair and his retainers. Or, perhaps, specialists at Her Majesty's Government Code and Cipher School [8] at Cheltenham are intercepting our communications at this moment and handing over the results to Washington. Such activities would have likely long predated "the president's program," being a convenient dodge for any American president to say his government did not spy domestically. Of course he did not spy: his satrap in 10 Downing Street did the deed.

Sixth, and finally, let us be clear about unauthorized spying. We have already seen what torture, a practice absolutely condemned by the Constitution, public statute, and the Law of Nations, is all about, and to what depths of sadistic sexual depravity it leads. It is a principle similar to eavesdropping. Do you, at this moment, have a burning desire to know in graphic detail what your neighbor is doing with the shades pulled? We hope not. Don't get started, because curiosity insensibly becomes voyeurism, a sexual pathology.

Let a government slip the civilizing constraints of the rule of law, and its paid servants your hired hands being merely human after all, will become addicted to a sexually pathological voyeurism. Fully participant citizens know their rights; subjects do not.

Endnotes

[1] Environmental degradation is a frequently overlooked cause of the fall of historical civilizations.

[2] Oriental Despotism, by Karl Wittfogel, Yale University Pres, 1963. The author’s thesis is that despotism proper developed in societies which gained relative population density, and therefore wealth, by regulating the flow of rivers for agricultural purposes by means of massive levees, canals, and other engineering projects.

[3] Although not from cats, who seek a secluded place to bear their young, and to defecate. The feline is a libertarian species, as Illinois Governor Adlai Stevenson recognized in his veto message regarding a misguided bill of the legislature of his state. http://www.bartleby.com/73/163.html

[4] Societies with personal liberty for their subjects tended to possess lower population density, relative inviolability from invasion, and a degree of orneriness. What differentiated them from the banditi of Sicily was usually a written constitution. It did not help that Sicily was a crossroads of Mediterranean invasions. The old Saxon legal system, with its emphasis on fines rather than capital punishment or amputation for crimes, would have enraged Rush Limbaugh and other pseudo-conservative hirelings.

[5] The very expansive legal authority of the Foreign Intelligence Surveillance Act, and why there is no practical need for warrantless wiretaps, is lucidly explained in a Congressional Record statement by Senator Diane Feinstein posted here: http://www.electricpolitics.com/2005/12/a_rebuttal.html#more.  Perhaps without knowing it, Senator Feinstein has laid the foundation for an impeachment proceeding.

[6] Veil: The Secret Wars of the CIA 1981-87, by Bob Woodward, Simon and Schuster, 1987.

[7] Admiral Inman paid the price for his independence in 1993 when President Bill Clinton’s appointment of Inman as Secretary of Defense foundered on the "controversy" occasioned by a scurrilous piece written by New York Times columnist William Safire. Safire, by his own admission a friend of Ariel Sharon and other luminaries of that country, by sheer coincidence was the author of Inman’s destruction. Inman, a veteran of the sea service in a position to know the facts, reportedly held a grudge over the impunity the government of Israel enjoyed, and continues to enjoy, with regard to the June 1967 bombing and strafing of the U.S.S. Liberty. That unhappy incident occasioned his withholding of intelligence when he became Deputy DCI. Safire apparently was not willing to let Inman’s heresy go unpunished.

[8] The British, who in the era before Tony Blair's police state once possessed a sense of humor, used to refer to this establishment as the "Golf, Chess, and Cheese Society."