UPDATE: A summary of the ballot language to Proposition 35 has been added as a footnote.
Civil liberties are more often than not difficult to stand up for in practice. In theory everyone is in favor of them, but the only times they make it into national debate is when they are under attack. When times are good policy makers and the public don’t seem to give much thought to re-visiting prior restrictions. If everything in fine why bother, right?
But in times of uncertainty, when fear and anger are driving the discourse, the temptation is to go for the farthest reaching solutions. Laws with vague provisions get rushed through, comforting assurances are announced to the public, and anyone who objects is immediately deemed suspicious.
We went through all this after 9/11. The PATRIOT Act was (and is) truly awful legislation, and led the way to all sorts of abuse. A nation traumatized by the terrorist attacks wasn’t very worried about unintended consequences, and politicians were happy to legislate accordingly. That kind of post-attack dread is very slow to dissipate, too. More than a decade on, there is still some political hay to be made in denouncing the awful practice of giving suspected terrorists a Miranda warning. Letting the lizard brain go to the background takes a long time.
In the years after 9/11 civil libertarians fought the worst infringements being pushed for and basically lost. The predicted abuses began pretty quickly, infringements expanded without any real push back, and by the time the FISA Amendments Act passed in 2008 it was obvious civil liberties were an afterthought to the federal government. (It’s a wryly amusing footnote that David Petraeus has had his career destroyed by exactly the kind of wide ranging data collection civil libertarians objected to at the time.)
Barring some extraordinary change in public opinion or political sentiment, that is where we stand. The issue has been settled, badly, and there is not much use in covering it any more - which is one of the reasons I haven’t written about it for the past few years. Maybe if a few more Petraeus scandals happen lawmakers will be inspired to have another look, but as of right now it seems like a dead issue.
A new civil liberties fight has started, though, and the outcome of this one is still to be decided. Like with terrorism, it starts grounded in truth. No one argued terrorism was not a threat after 9/11, just that we needed a less expansive fight against it. We could fight terrorism and still be true to our best traditions. Those who said that were mocked even though they were right (it didn’t do John Kerry much good, did it?) Making the case for a rational approach meant being soft on terror.
The issue of human trafficking has similar contours. Described by the government (via) as “the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude,” it is a very real and urgent problem. (It’s also worth pointing out that the Marczak/New Yorker pieces describe America’s involvement in trafficking as part of the subcontracting process for supporting our wars.)
This seems to be a case where an Inspector General report is called for, maybe also a hard look at how the military has outsourced so many of its functions. And this is probably too much to ask, but perhaps we could also look at the degree to which our wars create the environment for these kinds of human rights abuses.
But the term “trafficking” is also being used in other ways, most recently in California’s Proposition 35. It was billed1 as an anti-trafficking law, passed overwhelmingly, and was immediately challenged the the ACLU and the EFF. Because it, like terrorism, is an incredibly emotionally charged issue, anyone opposing it is almost immediately put on the defensive. In the same way that opposing wholesale infringements on our privacy meant that you didn’t want to help protect us from terrorism, opposing prop 35 now means taking a “stand against the safety and sanctity of children.”
Those who have written against it, like Melissa Gira Grant, have taken on a hard and unpopular task. One of the first responses will be to show wrenching pictures like the one that heads Marczak’s article and demand “so are you in favor of this?” The fact that no one with an ounce of empathy is, and that all decent people find trafficking abhorrent, quickly gets lost. When debates enter that kind of territory there isn’t much room for nuance. Those who have taken positions like Grant’s have probably learned that pretty quickly. And if recent history is any guide, the odds against them persuading the larger public are pretty long. It’s a debate worth having though.
1. From the summary provided in the linked voting guide:
Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.