Emergency is the Greatest Threat to Liberty
As we combat COVID-19, we must redouble our efforts to protect civil liberties
One of the most fundamental roles of government is to protect the rights and liberties of the people it serves. However, as the classical liberal economist F.A. Hayek accurately observed, “Emergencies have always been the pretext upon which the safeguards of individual liberty have been eroded.” Now, in the midst of the most disruptive public health crisis in generations, the American public must heed this warning. It is imperative that our urgent efforts to combat COVID-19 are matched by an equal urgency to safeguard our civil liberties during this unprecedented time.
One need not dig far back into history to find examples of the government using times of crisis to encroach on civil liberties. Just one month after the September 11, 2001 terrorist attacks, Congress overwhelmingly passed the USA PATRIOT Act, which vastly expanded the federal government’s surveillance powers in violation of Americans’ Fourth Amendment rights. This legislation was largely a government wish list of changes to surveillance law that had previously been rejected by Congress on constitutional grounds but were embraced by both legislators and the public with little debate in the fog of crisis.
Unfortunately, ostensibly “emergency” measures to curtail civil liberties are rarely lifted in their entirety after the crisis subsides, a public policy phenomenon referred to as a “one-way ratchet effect.” The enduring longevity of overreaching post-9/11 surveillance statutes is a textbook example. Since 2001, reauthorizations of the USA PATRIOT Act have been continually passed by Congress and signed into law by presidents of both political parties. The same predictable routine occurs every few years — this most unpatriotic of laws is renewed with just enough so-called “reforms” to appease those who profess civil liberties concerns while preserving the unconstitutional authorities granted to the government.
Unsurprisingly, the government is once again leveraging the public’s understandable fear amid this current threat in order to arrogate power at the expense of our essential liberties. According to a Politico report, the Department of Justice is seeking the authority to pause court proceedings during a “natural disaster, civil disobedience, or other emergency situation.” Granting the government the power to suspend court proceedings for as long as it deems the existence of an “emergency situation” — in other words, indefinitely — endangers Americans’ fundamental rights. Specifically, this proposal amounts to a violation of both the Sixth Amendment right to a speedy trial and the constitutionally established right to challenge the legality of one’s imprisonment. These infringements on Americans’ civil liberties would in no way ameliorate the public health crisis, yet the government is keen to exploit the public’s increased willingness to sacrifice liberty for perceived safety during an emergency.
The federal government is also reportedly considering a project to monitor cell phone location data in order to track and map the spread of COVID-19. Recent history warns us of the danger of scope creep with even well-intentioned surveillance initiatives. Just look at Section 702 of the Foreign Intelligence Surveillance Act, for instance. Although this warrantless surveillance provision, passed into law over a decade ago, was intended to be used to investigate international terrorism, it has been unconstitutionally used to convict United States persons of crimes in United States courts. It is naïve to believe that the use of surveillance data obtained for the initial purpose of tracking infectious disease outbreaks won’t eventually be expanded to other, constitutionally questionable purposes.
It is an oft-repeated platitude that compromising away our fundamental rights is necessary to “protect our way of life.” A failure to uphold these rights, however, poses a far greater threat to our way of life than does any national emergency. When we come out on the other side of this crisis and daily life returns to normal, the American people will expect their government to fully respect their civil liberties. Thus, as we confront this extremely serious but ultimately temporary threat, we must redouble our vigilance to never cede our liberties in exchange for the government’s false promise of security.
