A Not-So-Sweet Land Of Liberty

On the State of Freedom in America

As we approach the 240th anniversary of America’s independence from Britain, it’s worth asking: are Americans still living in “the land of the free?”

The short answer is no.

In our era of endless war, it’s hard to describe the United States in 2016 as a place where individual liberty is actually valued and upheld. A few examples, on a branch-by-branch basis, illustrate the point.

On June 16, the GOP-led House of Representatives rejected a bipartisan amendment to the annual Pentagon spending bill that would have prohibited the federal government from searching the stored overseas communications of Americans absent a warrant. Named after its lead sponsors — Republican Thomas Massie of Kentucky and Democrat Zoe Lofgren of California — the amendment easily passed the House in 2014 and 2015. But that was before the world witnessed the bloody handiwork of Omar Mateen at the Pulse nightclub in Orlando.

Capitalizing on public fears, fanned by non-stop major network coverage of the attack and its aftermath, House Intelligence Committee Chairman Devin Nunes of California and his committee colleague Lynn Westmoreland of Georgia circulated a letter to House members before the vote, in which they claimed (falsely) that the Massie-Lofgren amendment would “end the use of a vital tool for identifying and disrupting terrorist plots at home and abroad.”

The fear-mongering worked like a charm. The vote against Massie-Lofgren (198 to 222) was in effect a vote for allowing the government to continue collecting and storing the overseas communications of Americans en masse, absent the Fourth Amendment’s requirement of particularized probable cause that a crime has been committed. The defeat all but ensures that when the overarching law governing the essentially limitless overseas collection of American’s communications comes up for renewal in December 2017, it will be made permanent. And if Congress does make that kind of mass surveillance permanent — effectively gutting the Fourth Amendment — it will have handed ISIS a victory it could never achieve on its own: the destruction of a key component of the Bill of Rights.

And the federal government’s obsession with mass surveillance isn’t confined to Americans’ electronic communications.

Also in June, the Government Accountability Office released a report on the FBI’s Facial Analysis, Comparison, and Evaluation database, which includes over 400 million photos — less than 10% of which are actual criminal mugshots. The rest include drivers license photos and related data culled from at least 16 states, among other photos and sources. The overwhelming majority of the data collected is on citizens not the subject of a criminal investigation.

The constitutional peril of such a database is clear, as the GAO noted:

“The FBI has entered into agreements to search and access external databases — including millions of U.S. citizens’ drivers’ license and passport photos — but until FBI officials can assure themselves that the data they receive from external partners are reasonably accurate and reliable, it is unclear whether such agreements are beneficial to the FBI and do not unnecessarily include photos of innocent people as investigative leads.”

In 2004, the FBI wrongly accused Oregon lawyer and Muslim-American Brandon Mayfield of complicity in the Madrid train bombing on the basis of a low-quality fingerprint image. If the FBI’s database isn’t cleaned up and properly policed, more innocent Americans like Mayfield could be wrongfully targeted for surveillance and prosecution.

And what about one of the most basic rights of all: the right to seek redress for wrongful detention and torture? It now hangs by a thread.

One such egregious case that stands out is that of New Jersey native Amir Meshal who was detained by Kenyan authorities after fleeing fighting in neighboring Somalia in early 2007. Meshal had gone to Somalia the previous fall to do humanitarian work under the new Islamic Courts Union (ICU) government — a questionable life choice but not a crime. The case directly impacted my life, as Meshal was the constituent of the House member for whom I then worked — Rep. Rush Holt (D-NJ).

In my daily communications with the FBI and State Department it quickly became clear that it was the FBI that was running the show. It also became evident that Meshal had not been charged with a crime, but was being detained at an Ethiopian Intelligence Service facility on the outskirts of Addis Ababa. There, Meshal was repeatedly questioned by FBI (and possibly other) federal officials and allegedly threatened with death if he did not tell them what they believed was his real reason for going to Somalia: to join an Al Qaeda-affiliated terrorist group.

After months in custody and under increasing pressure from Holt, the FBI finally released Meshal shortly before Memorial Day 2007.

Meshal subsequently filed suit against the FBI, claiming wrongful detention and torture in violation of his constitutional rights. In making the case, Meshal’s lawyers cited a 1971 federal court precedent in which an alleged drug trafficking suspect illegally detained by federal agents was granted the right to sue those individual agents.

To date, Meshal has lost at the federal district and appellate court levels, with a majority of judges siding with executive branch lawyers who have asserted that national security considerations override Meshal’s rights in this case. In other words, the Department of Justice is arguing that the constitutional rights of an American end at the water’s edge, that if you are detained by your government in Ethiopia you can be subjected to treatment that would be unconstitutional and legally actionable in Philadelphia.

An appeal for a rehearing before the full appeals court was dismissed in February 2016. On May 31, Meshal’s lawyers filed an appeal with the Supreme Court. If the Supreme Court declines to hear the case or takes it up and subsequently deadlocks, federal law enforcement agents will know they have a free hand to detain, interrogate, and threaten Americans they seize overseas in alleged terrorism cases — all with absolute impunity.

Such is the state of American liberty on the eve of its birthday.