It’s Debatable: What will be the greatest threat to civil liberties this decade?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster consider what will be the greatest threat to civil liberties this decade? Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

MOSTER - 1America is in the midst of a technological, societal, and economic transformation which will radically threaten civil liberties before the year 2030. The operative effect will be to exacerbate the polarization between the very rich/poor, devalue/extinguish personal wealth, and ignite urban unrest and violence. Our government and legal system will respond with repression and the degradation of civil liberties across the board.

I know this is not a pretty picture and for more details, I refer our readers to my prognostication of the future in – Future 2050 – 12 Visions of the Time Ahead, released in 2021. The major catalyst for the societal seismic changes will be the full implementation of Artificial Intelligence in the workplace which will replace vast sectors of the American workplace including office/clerical positions, retail, banking, and even the employees stocking the shelves as Walmart and Amazon distribution centers. AI combined with robotics will replace blue collar jobs in the automotive sector including self-driving trucks which will transform the transportation sector. The displacement of workers will be permanent and debilitating leading to increased poverty, food insecurity, and hopelessness.

The societal collapse above will be further magnified by the collapse of the fiscal system which is already worthless given the gargantuan nation debt which has rendered our currency worthless. The likely massive sale of bonds held by the Chinese government in response to growing international conflict will result in a precipitous decline in value and tipping point akin to the Great Depression but worse. I would unabashedly make the comparison of the not-so-distant future economy as comparable to the post-WW-! German economy where hyperinflation soared into the thousands of percent and wheelbarrows of marks were required to buy a loaf of bread.

The urban reaction will be severe, violent, and unprecedented, making the riots of the late 60’s look like a relative walk in the park. City and state governments already ravaged by a loss of tax revenue will be unable to respond requiring the National Guard and federal authorities to offer support. Local law enforcement will be incapable of stemming the tide of destruction which will engulf the suburbs and then move into the higher income areas.

The legal system in tandem with state and federal governments will respond with repressive legal decisions and legislation which curtail civil liberties to protect the ravaged population. The existing Supreme Court precedent allowing for the incarceration of individuals deemed to be a national security threat will be employed and expanded. Front and center will be the invocation of the notorious decision, Korematsu v. United States (1944) which allowed for the forced incarceration of tens of thousands of Japanese Americans deemed to be a threat to America without cause and solely based on their ethnicity. Massive concentration camps were set up in the United States and widely supported across the country.

Korematsu will be the major tool utilized by states and the federal government to incarcerate vast numbers of the urban poor and those affected by AI employment displacement and the almost instant evaporation of savings. As frightening as it might seem, I predict that these “concentration camps” which will likely be benignly branded as “Emergency Holding Facilities”, will spring up in every major city and feature huge numbers imprisoned without cause and mostly comprising ethnic minorities including African Americans and Hispanics. This process will directly contradict our democratic institutions and norms and be rolled out based on the Korematsu rationale predicated upon the existence of a “national security risk” which allows for an exception to constitutional civil liberty protections. Our country has a long history of allowing for the repeal of civil liberties in the wake of state and national emergencies. Abraham Lincoln was notorious in this regard by repealing the right of habeas corpus during the Civil War.

In tandem with my predicted societal cataclysm will be the rise of “White Nationalism” which will gain traction as it always has historically in the midst of economic decline. In my opinion, we already have a bevy of such dangerous elements as evidenced by Donald Trump, Ted Cruz, Ron DeSantis, Marjorie Taylor Greene, and a host of others. They will lead a further legislative charge to erode what civil liberties remain in effect to promote their own self-interest and attack the unrepresented poor. Tragically, the historical scapegoats of the past will be unleashed leading to the resurgence of antimerism.

I apologize in advance if I caused gastric distress to our readers on a pleasant Sunday morning. Perhaps Rick will provide a quick antidote.

ROSEN - 1I defer to Charles’ expertise about artificial intelligence (“AI”). I disagree, however, with his statements about the consequences of AI. For example, what is the factual basis for his claim that “white nationalists” will ever gain power and intern ethnic minorities (a liberal Democratic Administration ordered internment in Korematsu)? What have Cruz, DeSantis, Greene or even Trump (for whom I have never voted) said or done that even remotely suggests they are “white nationalists” or advocate such internments? In any event, the 2008 and 2020 presidential elections demonstrate that “white nationalists” are unlikely to win a national election.

In 2008, during the nation’s most severe economic crisis since the Great Depression, the American people did not elect a “white nationalist,” but the antithesis of a “white nationalist”: Barack Obama. In 2020, during the nation’s deadliest pandemic, the American people did not reelect Trump; instead, they turned to Joe Biden.The greatest threat to democracy and civil liberties is government itself. For example:(1) Obama’s IRS discriminated against conservative groups exercising their First Amendment rights opposing Obama’s policies by delaying or denying their non-profit status.(2) In 2016, the FBI began a multi-year investigation of Trump’s alleged collusion with Russia based upon phony information furnished by the Clinton campaign. Either recklessly or intentionally, the agency subverted a democratically elected administration.(3) Throughout the COVID-19 pandemic, federal and state governments shutdown schools and businesses, prohibited religious worship in churches and synagogues, and censored the virus’ most likely source—a Chinese lab leak.(4) Since 2020, active and former federal officials have aggressively suppressed information deemed unfavorable to Biden’s election and his administration. Most significant were efforts in 2020 to conceal damaging information contained in his son Hunter’s laptop. Spurred by a senior advisor to Biden, a former CIA Deputy Director provided a letter signed by 51 former intelligence officials essentially declaring the laptop Russian misinformation—a patently false statement. The former intelligence officials thoroughly undermined their own integrity to provide Biden a means of neutralizing the laptop issue during his debate with Trump. Prompted by the FBI, the letter induced the media (including social media) to blackout the laptop story when it might have damaged Biden’s candidacy.These are real-world events—not predictions. Indeed, FBI whistleblowers recently confirmed to Congress the politicization of the Justice Department and the FBI. It’s difficult to overstate the danger to democratic institutions and civil liberties when government, particularly its preeminent law-enforcement agencies, become subsidiaries of a political party.

MOSTER - 2I hope my predictions are wrong and would gladly concede the debate to Rick. That said, for those who have paid attention to my published predictions, I am unfortunately batting a thousand.

Admittedly, 2030 is far off and no one has a crystal ball. However, prior history is the best predictor of future events. Rick is correct that White Nationalists have yet to come to power in the United States but we most certainly have come exceedingly close during the throes of the Great Depression on through the late 1930’s with a vast increase in Nazi participation, rabid resurgence of antisemitism, celebration of racist eugenic policies, and a string of court decisions which legalized mass incarceration and forced sterilization of undesirables. These dreadful decisions are still good law. For those who study American history, the epidemic of racism and resultant rise of fascist influences have surfaced since the founding of our republic to present day. It is almost always prefaced by economic dislocation. This is a historical fact. The only point of contention is whether America will reach a tipping point where the fascist forces will prevail. I stand by my prediction – unfortunately.

I cannot dispute Rick’s listing of the abuses committed by Democratic administrations which have resulted in the curtailment of civil liberties and unequal justice under the law. That said, it supports my supposition that the institutions of government are incapable of maintaining impartial administration of our laws at both the state and federal level and swing like a pendulum. I often state that as a young attorney working in the Reagan Administration popularly known for its conservative fiscal policy, I was instructed to spend close to $2 Billion of the peoples’ money to take back and liquidate assets once made available to create employment in the steel industry. When the federal loans defaulted, my job was to shut down steel plants across the country, seize and sell assets at a loss, and generate unemployment. Apart from asking for forgiveness, it accentuates that government is heartless and apolitical regardless of whatever branding is spewed out in campaigns. That is the truth.

Finally, to complete my prognostication as to 2030, I predict that massive corporations such as Microsoft (computers), Tesla (transportation), Facebook (communications), and Amazon (Retail) will gain the legal status as quasi-sovereign states operating within the political corpus of the United States. This is already in process as these companies are gobbling up unrelated assets necessary for self-sufficiency including agricultural land across the country and seeking Congressional approval for the exclusive use of cryptocurrencies. They are doing this to preserve their wealth and security in the womb of a deteriorating socio-political-economic system in rapid decline. The only way they will survive is to separate themselves from the existing fiscal system and rely on an alternative cryptocurrency. I also predict that these mega-enterprises which I refer to as the emerging “Corporate City States” will gain Federal authorization and concurrent judicial rulings to hyper-regulate the personal life of employees who will work within defined corporate boundaries akin the independent states. The civil liberties of employees in the workplace will be impaired as Corporate City States are allowed to regulate working conditions, compensation, education, procreation, and even the expression of ideas previously protected by the First Amendment. Tragically, the influence of these corporations in Congress juxtaposed with their wealth and capabilities will facilitate this dark transition.

Very much the way the Vatican existed as a shell of its former imperial status following the end of the Dark Ages and emergence of nation states, the instrumentalities and institutions of the United States will live on but as an artifice of their once proud existence. The buildings will stand as a marbled reminder of what once was. The rapid decline of civil liberties will be the “Constitutional Canary the coal mine”.

And it will get a lot worse.

ROSEN - 2Charles is a brilliant futurist; I will not second-guess his latest prognostications. My focus is less ambitious: the future of free of speech in higher education where we presumably educate the nation’s leaders. I attended college during the height of student anti-Vietnam War protests, some of which were violent. But I never experienced such disdain for free speech as I observe today.

Justice Louis Brandeis described the purpose of free speech: “Those who won our independence …. believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile, that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine ….” Government may not prohibit ideas simply because society finds them offensive. And the First Amendment encompasses not only freedom to speak, but also freedom to listen. As Justice Thurgood Marshall noted: “The First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak…. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.”

Today, many college students are increasingly intolerant of ideas with which they disagree. They demonstrate their disagreement not by thoughtful and rigorous debate but by trying to suppress the ideas altogether. A Foundation for Individual Rights and Expression survey found that only 37% of students believed it was never acceptable to shout down speakers or attempt to prevent them for speaking. A Buckley Institute survey revealed that 44% of college students consider it okay to shout down speakers.

For example, this spring the Stanford Law School Federalist Society invited federal appellate judge Kyle Duncan to speak. Backed by the school’s diversity dean, students shouted down Judge Duncan, preventing him from speaking because they disagreed with some of his opinions. Those who objected to the presentation need not have attended; their sole purpose was to prevent other students from hearing the ideas expressed.

What happens when these students—who are treated by their schools like “sheltered orchards”—enter the “real world” where they will almost certainly confront ideas they detest? Perhaps they should invest in blindfolds and earplugs. More to the point, these students will presumably become leaders in government, industry, and education. Their blatant intolerance for divergent ideas could spell the death knell of the First Amendment and the civil liberties it is intended to protect.

This article originally appeared on Lubbock Avalanche-Journal: What will be the greatest threat to civil liberties this decade?