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Government Checks Naughty or Nice

By Ivan Eland
December 12, 2006

Editor's Note: Besides endless warfare abroad, the interminable "war on terror" requires the steady erosion of freedoms at home. Already, many Americans, who are frightened by terrorism, have acquiesced to George W. Bush's assertion of "plenary" -- or unlimited -- power for himself, which means by definition that the old American notion of "unalienable rights" for citizens no longer exists.

Under this theory of "plenary"powers, American citizens have only the rights that President Bush grants and that he can rescind. He can lock up indefinitely anyone he deems an "enemy combatant"; he can spy on whomever he wishes; he can order "cruel and unusual" punishments; he can take the nation to war without congressional consent; he can ignore laws -- via his "signing statements" -- and override the Constitution.

In effect, Bush sees himself as the American sovereign with the rest of the people as his subjects, much as absolute monarchs did in the Middle Ages. Within these constrained notions of American liberty, it perhaps should come as no surprise that the Bush administration also claims the unchecked right to rate American travelers as possible security risks, as the Independent Institute's Ivan Eland observes in this guest essay:

This holiday travel season, Santa Claus is not the only one who is checking to see whether you’ve been naughty or nice.

For the last four years, the U.S. government has been snooping by computer into people’s travel records and assigning them a risk score for being terrorists or criminals. Of all the government’s violations of civil liberties since 9/11, the Department of Homeland Security’s Automated Targeting System (ATS) is probably one of the worst in terms of numbers of people affected.

Invariably, some of the traveling public that I chat with in airport security lines will say that if you have done nothing wrong, you have nothing to fear from the government’s intrusive measures. That dubious line of reasoning, however, makes the Herculean assumption that government usually gets things right.

Also, after examining where you are from, your motor vehicle records, how you paid for your airline ticket, and even your seating preference and the type of meal you ordered, and then assigning a risk factor to you, the government allows everyone to see this rating but you. Unlike privately held credit scores, you have no means to challenge any inaccuracies or the rationale for the government giving you a certain risk factor.

Yet there is more bad news: The risk assessment is then shared with state, local, and foreign governments, Congress, the courts, and private contractors, and can be used to deny employment in shipping and travel, licenses, security clearances, and government contracts. Even worse, the government intends to keep these assessments on file for 40 years.

One could easily assume that the next step is to give “high risk” people more hassles at airport security checkpoints. So if you get too many parking or speeding tickets could you end up on the terrorist watch list? If you eat too many vegetarian meals, could you be banned from flying?

Of course, as usual, government officials have refused to say whether the program has caught any terrorists. Given the fact that terrorism is rare—another thing missed by those air travelers who are champions of intrusive security—probably not.

The average American has a one in 80,000 chance of being killed by international terrorists. This probability is about the same as that of being hit by a meteor or comet. And since most terrorist attacks against U.S. targets are against U.S. embassies, military bases, and facilities overseas, if you live in the United States, especially outside Washington and New York City, your chances of being killed are even more remote.

All of this leads to the question of whether we should have a greater fear of the terrorists or the government’s overreaction to the threat. Many powerful vested interests that build security and data mining systems peddle their wares to government security agencies that care little about the sacred liberties that make this nation unique.

Like any bureaucracy, the security organizations use crises to gain more authority, bigger budgets, and the latest technological tools—consequences for the country and individual liberty be damned. The agencies then dress up this usurpation of freedom as a patriotic fight against terrorism. Governments have vast resources, when compared to those of small rag-tag groups of terrorists, and behave coercively—no matter what country they are in.

The only thing unique about the U.S. government—that is, the executive branch—is that that coercive power is supposed to be checked by Congress, the courts, an unfettered media, state and local governments, and the Bill of Rights. Unfortunately, in the age of the imperial presidency, which began after World War II, many of these checks and balances are breaking down.

The presidency is now so powerful that the chief executive apparently can simply violate laws by asserting that he is commander-in-chief—as President Bush did when he flagrantly ignored the law prohibiting surveillance without a warrant.

The Department of Homeland Security’s ATS system is yet another example of executive power encroaching on the privacy of individuals. Given current trends, during future holiday seasons, perhaps the government will assign ordinary people permanent ratings on their risk for committing murder, rape, burglary, armed assault, child molestation, speeding, and jay walking.

Santa Claus could certainly use a comprehensive system like this to determine the distribution of holiday packages. In the meantime, the government’s “war on terror” is the gift that just keeps on giving (more power to the security bureaucracies).

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute and Assistant Editor of The Independent Review. Dr. Eland has been Director of Defense Policy Studies at the Cato Institute, Principal Defense Analyst at the Congressional Budget Office, Evaluator-in-Charge (national security and intelligence) for the U.S. General Accounting Office, and Investigator for the House Foreign Affairs Committee.