In the civil libertarian world today, two issues rule the roost: surveillance and drones. Ordinarily civil rights issues like these find it difficult to gain traction, but increasingly it looks like even the mainstream media can’t ignore these issues. Spying on the behaviour of millions of innocent people, and murdering innocent people (AKA “collateral damage”) from a remote-controlled airplane, are difficult things to readily reconcile with modern ideas of human rights and freedoms. These issues make me think: how long before civil libertarians begin to comprehend the danger of similar totalitarian disregard for liberty in immigration policy?
Drones are primarily a concern for people burdened by the welfare of innocent people in war zones. Innocents in Yemen, Afghanistan, and Pakistan live daily in fear of an errant missile strike, meant for another, but still deadly to all innocents in its path. The policy for deploying drones, and launching their weaponry, until recently has been near-entirely opaque (some would argue it is still entirely opaque). What due process do we have to ensure that drones won’t recklessly murder dozens, hundreds, of guiltless people, in search of taking out one terrorist? What assurances can we give innocents that an overzealous government bureaucrat can’t use his discretion to murder innocent human beings?
The rationale for the US government’s National Security Agency surveillance programmes has always been: we spy on foreigners’ data, not our own. The NSA still maintains it protects US citizens’ data rigorously, though there are many reasonable doubts that this is true. Edward Snowden’s revelations, even if reconciled with the NSA’s claims about protecting US nationals’ data, still ring alarm bells for American civil libertarians: how easy might it be for the NSA to turn the same lens it has trained on foreigners onto us instead? In 1975, US Senator Frank Church warned of such surveillance:
That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know.
Since I blog for Open Borders, you would be wise to surmise that neither drones nor NSA surveillance are issues I think about much. But like millions of others, these are issues that weigh on me nonetheless. It worries me that innocent people are subject to murder by the state without due process. It worries me that innocent people are subject to surveillance by the state, again, without due process. And I know these worries all too well, for as an immigrant and someone who enjoys reading stories of immigration, I have seen just how utterly the modern state throws due process in the garbage the moment an immigrant crosses the threshold.
I’ve written before about how perplexed I am that civil libertarians devote a disproportionate amount of energy to criticising allegedly dehumanising air travel procedures. I’m glad to see that deserving due process issues are taking up more attention than ever before. But civil libertarians need to add another issue to complete their trifecta of due process concerns: drone murder, arbitrary surveillance, and arbitrary restriction of human movement. The simplicity and fairness of open borders is not just a nice-to-have; it is critical for a just and fair legal process.
I and others have written time and time again about how modern immigration procedures recklessly abandon due process. Ask yourself: did the refugees whose files were wheeled past a UK Minister so civil servants could “truthfully” tell Parliament that a Minister had duly reviewed their applications get justice? Did they get due process? How about the Brazilians whose visa applications were rejected because a US consulate decided that black visa applicants must be poor? Did they get due process?
Any US consular officer is entitled to reject most visa applications for any reason they like. This “consular nonreviewability” discretion, by US law, cannot be challenged in court or overruled by senior officials — not even the President. Since 1990, the American Bar Association has persistently asked the US government every year to “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles” — a request that has consistently fallen on deaf ears. In 2005, the US State Department issued a report recommending further reductions in existing due process and more discretion for consular officials.
It would be one thing if this due process brouhaha focused on police officers arbitrarily writing speeding tickets (as they often seem to be doing in many jurisdictions). But this lack of due process tears families apart. It destroys jobs. Imagine if you lost your job because your employer claimed you were a drug smuggler (based on your name resembling someone else’s, who actually is a drug smuggler) — and you had no right to challenge that claim in court. That actually happened to one unlucky immigrant in the US. A lack of legal due process harms real human beings; it breaks hearts and homes.
It is no consolation that the government is only empowered to take your spouse and children away from you, or fire you from your job, if you’re a foreigner. As Senator Church warned in 1975:
I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return. (emphasis added)
A government powerful enough to arbitrarily evict your neighbour from his home, take him away from his family, and take his livelihood away from him, is powerful enough to do that to you too. One remarkable thing I’ve found about the debate surrounding drones and surveillance is that the people criticising them often also implicitly criticise a focus solely on the well-being of citizens, urging us to account for these policies in the totality of their effects on innocent human beings, regardless of nationality. I do not think this criticism of citizenism has struck that much of a chord with the masses — Glenn Greenwald may worry about the innocent Afghan victims of drones, or innocent British victims of surveillance, but the median news media consumer probably does not.
However, these issues resonate, because people appreciate the risk of giving government too much power — the power to kill and the power to spy without the process of law or supervision. Perhaps people need a similar awakening about the power of government to keep you alive while taking away everything you hold dear — your home, your job, your family. That the victims are mere foreigners should be little consolation. A government powerful enough to do anything without due process is powerful enough to make a victim of you too.
The photograph featured at the top of this post is of striking miners being deported from Bisbee, Arizona in 1917. Scanned by the Arizona Historical Society; original photographer unknown.