Primarily because the forces of order-keeping have demonstrably not created a state-within-a-state, which is the taxonomic category for which, strictu sensu the term "police state" is used. Hence the distinction between the role of the SS in Germany under the NSDAP, Securitate in Ceaucescu's Romania, or the KGB in the old Soviet Union or the present Belarus and places where order-keeping and surveillance are aggressive, but the security organs have not attained autonomy under conditions that also fully displace the rule of law. The surveillance industrial complex in the US, which is supplementing and in some respects replacing the military industrial complex we developed during and after the Second World War, could conceivably cut itself loose from all moorings and become practically autonomous, but it hasn't yet. Our courts have made outstandingly little effort to subject the new surveillance industrial complex to the rule of law, but they aren't out of the business, and the pendulum will sooner or later swing back the other way. If, that is, we push.

But why should we need to use the rhetoric of "the police state" in order to call urgent attention to the ongoing destruction of constitutional civil liberties in the US? Those who are already concerned don't need that jolt to be engaged, and those whom we most thoroughly want to engage—Americans who were frightened by the propaganda after September 2001 that was used to frighten them—don't respond particularly well to that rhetoric anyway.

Similarly, whether Florence is a symptom of government sexually intimidating its citizens is a dispute we're not required to win in order to conclude that the Fourth Amendment is not being honored by a Supreme Court that considers its outcome "reasonable."

I too read Jennifer Abel's comment essay in The Guardian. Like you, I thought it tersely summarized the extraordinary degree to which Americans have permitted the pillaging of their civil liberties, particularly the destruction of their privacy, under the misimpression that their sacrifices are significantly contributing to their physical or emotional security. I teach a course on closely-related subjects, called "Computers, Privacy, and the Constitution" that you might find interesting.

But I did not find Ms Abel's rhetoric as pragmatically appealing as you did. In addition to its tendency to appeal politically to a too-narrow segment of the society, it seems to me to function at the unconscious level in the wrong way. The problem we have is that peoples' fears, sense of a society around them out of control, have been manipulated to further other interests at the expense of their civil liberties, particularly their right to be free of unreasonable searches and seizures, in both "real" and "digital" worlds. Words that make them feel even more disempowered ("you're living in a police state that's going to strip search and sexually intimidate you when it isn't feeling you up in an airport or rooting through your handbag on the public bus") will have the effect of unconsciously stimulating their need for order and security. Even though the fear is being used to push them against public-order activities, it will achieve paradoxically little in that direction.

The better rhetoric for such a situation is the one that helps to re-empower citizens. It reminds them that their rights are valuable heritage. It helps them remember that it's their honor and their duty to hand on to those who come after them the free society they were given. It helps them feel capable of discharging that responsibility, for which others who came before them made greater sacrifices. It keeps them from trading a temporary sense of enhanced security for a permanent reduction in liberty. It calls them to action not on the basis of their helplessness, but on the basis of their power, their importance, their duty to preserve what they love.

Seems to me the most useful next revision would be a draft that tried another rhetorical approach, so that you can experiment for yourself with the possibilities of reframing. It might also be interesting to ask what unconscious motives might lead someone to frame the discussion in a way that will increase the audience's sense of fear and insecurity.

The Sexual Intimidation of the State

-- By ShefaliSingh - 29 Apr 2012

Eben, I would like comments and the opportunity to edit this essay at least once.

The Growing Police State

It is terrifying to think of my country as a police state, but this fact has only become more apparent as time goes on. Every week a new article appears about how a TSA officer thoroughly patted down a child, harassed an elderly person in her wheelchair or fulfilled the obligatory genital groping in a very intrusive way. One woman was recently reduced to tears during her pat down, because its intrusiveness reminded her of her rape experience. She said she was only given two options while standing in the security line, “either allow strangers to see her naked [on the AIT full body scanner] or allow strangers to touch and squeeze her breasts and groin in full view of other travelers and TSA agents.”

The TSA is also no longer restricted to the confines of airports. TSA Visual Intermodal Prevention and Response (VIPR) teams can be found at an increasing number of highway checkpoints and bus and train stations. Its reach seems unbounded, though one may question why they even bother even since the Supreme Court recently ruled that officials may strip search anyone arrested for any offense, not matter how minor. When individuals can be subjected to a strip search “after arrests for violating a leash law, driving without a license and failing to pay child support,” how could the U.S. not be characterized as a police state?

Spread Your Cheeks

A recent article in the Guardian described the many ways the U.S. eagerly uses sexual manipulation as a political means to control its citizens and prisoners. In between describing horrible stories of sexual abuse of prisoners at Bagram and the groping hands of TSA officers in airports, the author states, “I believe that the genital groping policy in America . . . is designed to psychologically habituate US citizens to a condition in which they are demeaned and sexually intruded upon by the state – at any moment.”

As a U.S. citizen, and specifically a woman, this observation repulses and scares me. My own government is empowering its agents to utilize intimidation and sexually degradation in order to force its citizens into compliance. A government that has spent billions of dollars and lost thousands of lives in its efforts to fight the “evil dictatorships” of non-Western states is openly using sexual intrusions to bully its people. One man, Mr. Florence, who happened to be black and driving a nice car in New Jersey, was pulled over and held for eight days for an unpaid fine—which he had actually paid and provided proof of payment when he was arrested—even though a failure to pay a fine is not a crime in New Jersey. During that time, Mr. Florence was strip-searched twice. He was forced to stand naked in front of several guards and prisoners, and then was instructed to “Turn around. Squat and cough. Spread your cheeks.” He later described the incident as “humiliating. It made me feel less than a man. It made me feel not better than an animal.”

Our government condoned this act. The police officers were empowered to strip this man of his dignity, even though no crime had been committed, based on the irrational argument that he could be “a master of becoming incarcerated though blameless, in the hope of passing along contraband to confederates waiting for him inside.” And officers across the country continue to have the power to demand that anyone arrested, not convicted, for any minor offense strip, squat and spread. The government made him feel like an animal, and made it very clear who his master was.

This degrading treatment is a powerful tool that can be used to control U.S. society, at the cost of human dignity. It is an attack on liberty through fear and intimidation. And it likely will only get worse as the government attempts to spy on and control more and more aspects of our lives, especially through the Internet. (One Internet advocate was quoted in the Guardian article as stating, “There is a race against time: they realise the internet is a tool of empowerment that will work against their interests, and they need to race to turn it into a tool of control.”)

The Law We Deserve

Is this law that we have the law we deserve? No, and I believe that even Judge Day would agree with me. No people deserve these laws, purposely designed to make individuals feel as vulnerable as possible. It is scary to think of where we are headed, of how such intrusions could get worse. How can we escape them? How can we fight back? When our branches of government refuse to “balance” each other, when our senators praise these efforts as “increasing security,” what can the people do?

I believe that it will be our responsibility, as future lawyers, to be aware of and oppose such measures either through policy work or by representing the Mr. Florence’s of the country. It will be lawyers with convictions akin to Martha Tharaud who will take a stand against such easily abused, degrading measures. They will fight to weaken the police state, and bring more laws and powers back into the control of the people. I think that now, during Law School, is the opportune moment to question what side of that debate we will choice to be on, if we choose to participate in the debate at all. It is a question that I constantly ponder, balancing the expectations of having a prestigious corporate job at a prestigious law firm with my personal indignation of increasing policing measures and general injustices. By the end of Law School, I hope I make the right choice to work towards getting us the law we actually deserve.

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