Live free or die: Death is not the worst of evils.
–General John Stark (1803)
The phrase “9/11” is more than just a date: it’s a cautionary tale, a bogeyman, a catchphrase how dangerous a place the world can be, even for American citizens supposedly safe within the borders of our homeland.
In the wake of the coordinated attacks of 11 years ago, intranational security forces, from the federal level down to the hyperlocal, have evoked 9/11 as justification for making the United States less free than it was at the end of the 20th century, to the point that in many places—such as Southern California—if you are determined to be taking pictures “with no apparent esthetic value,” police will often detain you and document your law-abiding behavior on a Suspicious Activity Report (SAR).
I know from experience. Last June eight Los Angeles County Sheriff’s deputies detained me over suspicion of my taking pictures of the Long Beach County Courthouse—a perfectly legal activity (which I wasn’t doing, by the way)—and subjected me to a pat-down search as I stood there in my cute little jogging outfit. Then, even after I had explained to them what I was doing and showed them the not-of-the-courthouse pictures, they required me to supply them with my name, address, phone number, driver’s license number, and the name of the publication for which I was writing before they would let me go on my way.
In the post-9/11 world, such overzealous “security” measures are standard operating procedure for many law-enforcement organizations nationwide, and I chose to join with two other photographers in an ACLU lawsuit against the Sheriff’s Department over polices and practices we believe to be unconstitutional. That lawsuit is ongoing.
According to Long Beach Police Chief Jim McDonnell, whom I interviewed in response to an apparently similar detention by the LBPD of Long Beach Post contributor Sander Roscoe Wolff later that same month, Long Beach is “on-line” with such practices, and he said generally officers will approach photographers not engaging in “regular tourist behavior.”[1]
The story I wrote in August 2011 after my interview with McDonnell is the most widely read story in the Post‘s history, causing a viral furor as people learned about the Los Angeles Police Department’s Special Order No. 11, a March 2008 statement of the LAPD’s “policy […] to make every effort to accurately and appropriately gather, record and analyze information, of a criminal or non-criminal nature, that could indicate activity or intentions related to either foreign or domestic terrorism.” Among the non-criminal behaviors “which shall be reported on a SAR” are the usage of binoculars and cameras (presumably when observing a building, although this is not specified), taking notes, asking about an establishment’s hours of operation, and taking pictures or video footage “with no apparent esthetic value.”
Last week Infowars.com referenced my detention in its reportage on a new LAPD policy, Special Order No. 1, which “revises the procedures for reporting suspicious activity potentially related to foreign or domestic terrorism to be consistent with the Office of the Director of National Intelligence, Information Sharing Environment Functional Standards Suspicious Activity Reporting.”
Those revisions contain little change in departmental practice. “It is the policy of the Los Angeles Police Department to make every effort to accurately and appropriately gather, record and analyze information of a criminal or non-criminal nature that could indicate activities or intentions related to either foreign or domestic terrorism,” the Order says. If it sounds reasonable at first glance, take a moment to consider all that might be covered by a blanket as large as “non-criminal [activity] that could indicate […] foreign or domestic terrorism” (emphasis added). For example, five men in traditional Arab garb chatting across the street from the courthouse—or for that matter, four of my non-Arab friends and myself in jeans and T-shirts—could indicate the planning of a terrorist attack, right?
“Suspicious Activity,” the Order tells us, “is defined as observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity. While talking would certainly be part of any such pre-operational planning, the Order doesn’t explicitly go that far. But it comes close. “Potential Criminal or Non-Criminal Activity Requiring Additional Fact Information During an Investigation” includes “Taking pictures or videos of facilities/buildings, infrastructures, or protected sites in a manner that would arouse suspicion in a reasonable person”; and “Demonstrating unusual interest in facilities/buildings, infrastructures or protected sites beyond mere casual or professional (e.g., engineers) interest, such that a reasonable person would consider the activity suspicious. Examples include observations through binoculars, taking notes, attempting to measure distances, etc.”
Clearly, much of this comes down the question of what is “reasonable.” And the LAPD knows it is on a slippery slope. “Officers are reminded of the Fourth Amendment to the United States Constitution as it pertains to search and seizure, and the United States Supreme Court Case Terry vs. Ohio as it pertains to stop and frisk,” the Order says. Then there’s this note:
These activities are generally protected by the First Amendment to the United States Constitution and should not be reported in a SAR, absent articulable facts and circumstances that support suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may be used as specific-involved person descriptors).
Last week the LBPD sent out a press release “remind[ing] residents to be extra cautious to what is going on around them and to report any suspicious activity immediately by calling 9-1-1.” “Homeland security begins in our own neighborhoods,” Chief McDonnell is quoted as saying. “The responsibility falls on all of us to be mindful of what is taking place in our communities and to report anything that looks suspicious or out of place.”
McDonnell is not wrong. It is important for each of us to do her part to keep our country safe, to watch out not only for ourselves but also our friends and neighbors, our city and country. And there can be no doubt that law enforcement is an essential component in maintaining the security we all desire.
But as we reflect on the incidents of September 11, 2001, we should be mindful of defending ourselves not only from external attack, but also from internal incursions against our freedoms.
The Bill of Rights exists for one reason, and one reason only: to prevent any aspect of the United States government from infringing on the rights bestowed upon us by that great document (or, if you like, by our Creator). It is not about terrorists or other foreign invaders: it is to keep us safe from ourselves.
When a government body—even if that body falls under the umbrella of “law enforcement”—invokes a policy that infringes upon any part of the Bill of Rights, that government body is, with respect to its practices based on that policy, acting as a domestic enemy. In that respect, it should be resisted. It is our Bill of Rights that underpins the uniquely guaranteed American freedoms we enjoy—or are supposed to enjoy—every day of our lives in these United States. It is nationally sacred; trespasses against it are profane.
I had the privilege of being born in a state within this union, and so the Constitution is my birthright. But for those born elsewhere, they must go through a process to become the beneficiaries of these rights. The last thing required of them before they receive the gift of American citizenship, an oath of allegiance, includes a phrase we all should find instructive:
I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic….
Our country is less free than it was a dozen years ago, and the average American is more liable to have his perfectly legal behavior monitored or interfered with by the police. Many will argue that these were necessary changes, necessary to ensure Americans’ safety here at home.
Such policies, of course, cannot ensure anything. They are, at best, attempts to preempt acts of terrorism. At worst, they are violations of the Bill of Rights.
So know your rights, and exercise them wherever you want, whenever you want. The structure being built on Ground Zero is not called “Security Tower” but “Freedom Tower.” Freedom is both our country’s foundation and superstructure, and nothing—not terrorists, not fear, not our own government and police, not concerns about out personal and national security—should be allowed to tread on that which makes our country truly great.