an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Stephen Graham's pathbreaking essay "Surveillance, Urbanization, and the US 'Revolution in Military Affairs'" (in the collection Theorizing Surveillance edited by David Lyons) predicted that innovations designed to subdue hostile territories could have many troubling applications elsewhere. In "Welcome Home, War," Alfred W. McCoy argues that "the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling 'the homeland:'"
[M]ilitary intelligence units are coming home to apply their combat-tempered surveillance skills to our expanding homeland security state, while preparing to counter any future domestic civil disturbances here. . . . [I]n September 2008, the Army's Northern Command announced that one of the Third Division's brigades in Iraq would be reassigned as a Consequence Management Response Force (CMRF) inside the US Its new mission: planning for moments when civilian authorities may need help with "civil unrest and crowd control." According to Colonel Roger Cloutier, his unit's civil-control equipment featured "a new modular package of non-lethal capabilities" designed to subdue unruly or dangerous individuals—including Taser guns, roadblocks, shields, batons, and beanbag bullets.
In a future America, enhanced retinal recognition could be married to omnipresent security cameras as a part of the increasingly routine monitoring of public space. Military surveillance equipment, tempered to a technological cutting edge in counterinsurgency wars, might also one day be married to the swelling domestic databases of the NSA and FBI, sweeping the fiber-optic cables beneath our cities for any sign of subversion. And in the skies above, loitering aircraft and cruising drones could be checking our borders and peering down on American life.
I would count on Fox News celebrating all these innovations as vital to protection of the homeland (as soon as they are implemented by a President who is not a Democrat).
More innovations in surveillance and control appear to be coming out of the office of Immigration and Customs Enforcement (ICE). Here is part of Jacqueline Stevens' essay on the topic in The Nation:
ICE agents regularly impersonate civilians--OSHA inspectors, insurance agents, religious workers--in order to arrest longtime US residents who have no criminal history. . . . "If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear." Those chilling words were spoken by [the] then executive director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. Also present was Amnesty International's Sarnata Reynolds, who wrote about the incident in the 2009 report "Jailed Without Justice" and said in an interview, "It was almost surreal being there, particularly being someone from an organization that has worked on disappearances for decades in other countries. I couldn't believe he would say it so boldly, as though it weren't anything wrong."
Conditions for those in immigration detention centers can be very trying:
The absence of a real-time database tracking people in ICE custody means ICE has created a network of secret jails. . . . Alla Suvorova, 26, a Mission Hills, California, resident for almost six years, ended up in B-18 after she was snared in an ICE raid targeting others at a Sherman Oaks apartment building. For her, the worst part was not the dirt, the bugs flying everywhere or the clogged, stinking toilet in their common cell but the panic when ICE agents laughed at her requests to understand how long she would be held. "No one could visit; they couldn't find me."
As Glenn Greenwald has suggested, the key to the national surveillance state is intrusive attention directed at its own citizens, coupled with very little access to the state's use of the information it gathers. That's one reason why the Markle Foundation's proposal for rapid implementation of "immutable audit logs" is critical. Abuses can only be deterred if they are recorded.