Drug Agents Have an NSA-Style Spying Problem

Thursday, September 5, 2013 by ACLU Blog
by Ezekial Edwards

Over the last few months, we've been bombarded with revelation after revelation about the NSA's unprecedented spying on Americans. But, according to The New York Times, the NSA's untethered snooping is eclipsed by the agents fighting in a war that began long before 9/11: the costly and failed War on Drugs.

The Drug Enforcement Administration's secret Hemisphere Project, news of which broke this week, allows drug law enforcement agencies broad access to billions of AT&T phone records going back a quarter century—to 1987. As The New York Times explained, "the scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.'s gathering of phone call logs under the Patriot Act."

Our government's mass telephonic data-mining has sparked immense and deserved outrage. But to those who have been targeted by the War on Drugs for the last several decades, the Hemisphere Project is only one in a long line of privacy-invading tactics employed by the U.S. government. Many other intrusions – such as the thousands of unconstitutional stops-and-frisks of people of color in cities across the country, the countless doors kicked in by police in search of drugs, the seizure and forfeiture of property of people never convicted of a crime – are representative of the kinds of common corporal intrusions that have been endured by many Americans, disproportionately of color, long before many post 9/11-era invasions of privacy became commonplace for all Americans.

Further, since 9/11, there has been an increasingly entrenched relationship between overreaching national security programs and domestic drug law enforcement policies. Each has fed on the other: the long-running drug war provided useful surveillance blueprints for the massive domestic spying programs that have sprouted up since 9/11. At the same time, domestic drug law enforcement agencies have seized upon the dismantling of basic constitutional protections over the past decade – in the name of national security – and pointed the resulting weapons toward America's own citizens.

It should not surprise us then that the Hemisphere Project is only the latest disclosure of mission creep.

We found out last month that the DEA secretly uses NSA surveillance data against Americans as part of its drug investigations – and then conceals its reliance on this foreign intelligence information. This practice jeopardizes the right to a fair trial for anyone facing criminal prosecution based on evidence derived from that surveillance data.

Or consider "sneak and peek" warrants, in which law enforcement enters a home or office when no one is present and conducts a search of the premises, without giving notice to the occupant beforehand. Provisions allowing for these warrants were included in the Patriot Act after government officials said they are necessary to fight terrorism, but 76% of "sneak and peeks" were used in drug investigations in 2010. (And that is no anomaly: from 2006-2009, 1,618 sneak and peek warrants were used in drug cases, 22 in fraud cases, and 15 in terrorism investigations). Further, the use of GPS tracking devices, aerial surveillance, and the militarization of police – often justified by national security needs – are instead often coopted as highly destructive components of our domestic drug war.

In keeping with the clandestine nature of our government's various spying programs, the DEA had delineated a series of steps to "keep the program under the radar" by instructing "all requestors … to never refer to Hemisphere in any official document" and "‘walling off' the information the government obtains from Hemisphere." This is all in the name of enforcing drug prohibition, a 40-year failure that has cost billions, led to the unnecessary incarceration of millions of Americans, and failed to make a significant dent in the use, availability, or potency of drugs.

Why has the DEA kept this surreptitious surveillance program in the shadows? Because, as with so many of government surveillance programs, Hemisphere raises serious constitutional questions. There is a strong argument that it is unreasonable under the Fourth Amendment for the government to outsource the automatic collection and storage of millions of Americans' phone records without any individualized suspicion and without court approval or oversight—simply so that law enforcement agencies have easy and immediate access in the future. Like the N.S.A.'s mass call-tracking program, such extensive and unlimited data gathering, particularly reaching back decades, allows the government to construct incredibly detailed and invasive pictures of our past and present lives.

Simply put, under the tired guise of protecting Americans from drugs, the U.S. government has secretly targeted and invaded the life and privacy of millions of its own citizens. The U.S. should be ending the War on Drugs, not expanding it by secretly outsourcing widespread surveillance.

People Refusing to Cooperate with DHS Checkpoints

Here’s a crew of folks refusing to submit to questioning at Department of Homeland Security immigration checkpoints that aren’t actually at the border (and one case of a driver refusing to cooperate with one of California’s produce checkpoints as an employee hilariously thinks he can make him leave the state).

Police Can Record Video Inside Your Home Without A Warrant, Appeals Court Says

By Nicole Flatow on Dec 3, 2012 
ThinkProgress

Earlier this year, the U.S. Supreme Court provided some comfort to those fearing the seemingly limitless potential of new technologies to enable government privacy invasion. In holding that police could not attach a GPS device to a car and track it for 30 days without a warrant, the court said, “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

But don’t get too comfortable. A federal appeals court ruled last week that police can secretly videotape a suspect’s home without a warrant. In a case about the suspected sale of bald eagle feathers and pelts – a misdemeanor crime — the U.S. Court of Appeals for the Ninth Circuit held that undercover police admitted into the suspect’s home as interested buyers of pelts did not violate the Fourth Amendment when they secretly videotaped the suspect’s home:

We are persuaded that it is not “constitutionally relevant” whether an informant utilizes an audio-video device, rather than merely an audio recording device, to record activities occurring inside a home, into which the informer has been invited. When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.

The decision doesn’t entirely break new ground. At least one other federal appeals court has upheld the use of video recordings inside the home, and just last month, a lower federal court reached a similar conclusion.

But the case raises the same sorts of concerns that several concurring justices emphasized in the U.S. Supreme Court’s decision last term in United States v. Jones: What scope of surveillance will not violate our present understanding of a “reasonable expectation of privacy”? At what point are we, as Justice Sonia Sotomayor cautions in Jones, “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track, may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’”? Electronic Frontier Foundation staff attorney Hanni Fakhoury elaborates on this concern:

[T]he sad truth is that as technology continues to advance, surveillance becomes “voluntary” only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we’re entering an age where criminal suspicion is no longer even necessary. Whether you’re calling a friend’s stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using licenseplatescanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.

The fractured majority in United States v. Jones didn’t provide much guidance about where the court will draw future lines on surveillance, relying instead upon the fact that the Jones case involved a physical trespass — a type of privacy violation of particular constitutional concern. Of course, the Ninth Circuit case involved a physical intrusion in the place subject to the greatest Fourth Amendment protection – the home. Whether it became something other than a trespass — and sufficient grounds to authorize invasive surveillance – because the suspect unknowingly admitted the undercover officer into his home is another question that may be for ripe for Supreme Court consideration.

NSA Whistleblowers: NSA Spying on 'the Entire Country'

Wednesday, July 25, 2012 by Common Dreams

Former NSA employees Thomas Drake, Kirk Wiebe and William Binney warn of widespread gov't surveillance

The National Security Agency (NSA) has created a "pernicious, persistent and permanent" database since 9/11 and is spying on "the entire country" according to NSA whistleblowers Thomas Drake, Kirk Wiebe and William Binney.

Drake, Wiebe and Binney made the comments speaking on Viewpoint with Eliot Spitzer on Current TV on Monday.

Drake said the widespread domestic spying was due to a “key decision made shortly after 9/11 which began to rapidly turn the United States of America into the equivalent of a foreign nation for dragnet blanket electronic surveillance,” putting touted efforts at national security above all else, including constitutional rights.

Referring to an NSA facility in Bluffdale, Utah which will hold communications collected by the agency, Binney said, "That facility alone can probably hold somewhere close to a hundred years’ worth of the communications of the world.” Binney continues, “Once you accumulate that kind of data — they’re accumulating against everybody — [it's] resident in programs that can pull it together in timelines and things like that and let them see into your life.”

Binney said the NSA was developing automated algorithms that would allow the NSA to easily sort through everyone's data. "Everybody will be a part of this," he stated.

Asked by Spitzer if anyone at the NSA worried of 4th amendment implications and raised questions, Wiebe said, "No."

The three whistleblowers are providing evidence in a lawsuit by the Electronic Frontier Foundation (EFF) against the NSA.

"For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people," said EFF Legal Director Cindy Cohn. "Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We're extremely pleased that more whistleblowers have come forward to help end this massive spying program."

"The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret," said EFF Senior Staff Attorney Lee Tien. "Yet the government keeps making the same 'state secrets' claims again and again. It's time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance."

* * *

* * *

* * *

* * *

In April, William Binney gave his first television interview after resigning from the National Security Agency to Democracy Now!:

Exclusive: National Security Agency Whistleblower William Binney on Growing State Surveillance

Washington admits surveillance violated Fourth Amendment

 (just once, huh?--jef)

RT
Published: 22 July, 2012
 

The US government has admitted to violating the Constitution’s Fourth Amendment ban on unreasonable searches and seizures on at least one occasion during surveillance efforts.

In a letter to Sen. Ron Wyden, the Office of the Director of National Intelligence (DNI) confirmed a Foreign Intelligence Surveillance (FISA) Court finding that “some collection carried out pursuant to the Section 702 minimization procedures used by the government were unreasonable under the Fourth Amendment.”

The FISA Amendments Act, signed into law by former US President George W. Bush on July 10, 2008, provides an extension to the government’s use of wiretapping in the aftermath of the September 11 terrorist attacks, allowing the government to collect any phone or e-mail communications made when at least one party is believed to be outside of the United States – without requiring a warrant.

Wyden is the most vocal Senator to question the extent of the government’s use of domestic communications surveillance, which includes wiretapping.

Without providing details about when and how the violation occurred, or the extent of the “unreasonable” surveillance, the DNI letter confirmed that FISA has “sometimes circumvented the spirit of the law.”

The FISA Court found that the government was using unreasonable minimization procedures – meaning it was overstepping the length of time it was legally permitted to retain its surveillance data.

The government says it has “remedied” the FISA Court’s concerns regarding the constitutional violation and will continue to lawfully collect e-mails and phone calls, but the letter’s indication of at least one “unreasonable” search remains a troubling fact to Americans concerned about their privacy.

While the DNI confirmed a fault, the director’s office claimed it was in the country’s best interest to publicize the issue, stating, "the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

The news of the constitutional violation comes as the Obama administration is pressuring Congress to reauthorize the 2008 statute, which would otherwise expire at the end of the year. (broken campaign promise--in fact, the opposite of what he campaigned for in the primaries, then reversed his stance right before the '08 election--jef).

DNI director James Clapper says reauthorization should be a top priority to prevent terrorist attacks against Americans (since 9-11, ALL of the terrorist plots that have been stopped were  also planned by the FBI as set-ups to entrap potential terrorists. No foreign terrorist plots have been stopped by Bush OR Obama.---jef)

The law “allows the Intelligence Community to collect vital information about international terrorists and other important targets overseas while providing robust protection for the civil liberties and privacy of Americans,” he wrote Congressional leaders.

But Wyden is threatening to block the government’s requested five-year extension of the statute unless lawmakers receive more information about the extent of the wiretapping. The Senator is concerned that communication between “law-abiding Americans” is being unlawfully intercepted.

Wyden says the government could develop a large collection of personal e-mails and phone call data, and sift through it to isolate conversations between individual Americans. He maintains that such “back door searches” must be avoided.

In June, the National Security Agency (NSA) refused to disclose how many Americans have been affected by government surveillance. Wyder responded by noting that the fact that the number is unknown hides the extent of the spying.

In response to the NSA’s secrecy, Wyden offered an amendment prohibiting warrantless searches of domestic communication, which was rejected.

“This law clearly has had a bigger privacy impact than most people realize,” Wyden said. “In particular, I believe that the ‘back door searches’ loophole needs to be closed.”

Important Things You Should Know About Privacy and the Supreme Court Ruling on GPS Tracking

On its face, this represents an important victory against the surveillance state. But this is a narrow ruling that leaves many crucial questions unanswered. 

By Scott Lemieux, AlterNet
Posted on January 29, 2012

Antoine Jones was sentenced to life in prison on drug distribution charges. The key evidence against him came from a month’s worth of data collected by a GPS tracker that police had attached to Jones’s car. The GPS, however, was attached without a valid warrant (police had obtained a warrant, but is was expired and for another jurisdiction.) Jones appealed his conviction, arguing that the warrantless GPS tracking violated the Fourth Amendment’s prohibitions against “unreasonable search and seizures.” The government replied that the installation of the GPS did not constitute a “search,” and hence could not have violated Jones’s constitutional rights. The Court of Appeals for the District of Columbia Circuit rejected the government’s argument, however. And earlier this week in United States v. Jones, the Supreme Court unanimously agreed that the police actions constituted a “search” and were subject to the restrictions of Fourth Amendment.

Here are some things you should know about this case and how the Bill of Rights might apply to modern technologies that increase the government’s power to invade private space:

1. While the Court ruled that Jones had been subject to a “search,” it did not address the question of whether the search was “unreasonable.” Because the search was conducted without a valid warrant, the search was presumptively unconstitutional. But – especially when it comes to cases involving the War On (Some People Who Use Some) Drugs – the Republican-dominated federal courts have been increasingly willing to carve out exceptions for warrantless searches. Until the courts decide this question, we don’t even know if the search of Jones will ultimately be ruled illegal.
2. Even in cases where a search has been held to be illegal, the Supreme Court has shown a willingness to water down the “exclusionary rule,” which holds that illegally obtained evidence cannot be used in courts. The provides strong incentives for the police to respect constitutional rights, because they cannot profit from illegal behavior; conversely, absent the exclusionary rule police have little incentive to comply with the law (civil remedies for violations of the Fourth Amendment are generally ineffective.) For example, in its infamous 2006 ruling Hudson v. Michigan, the Court ruled that while dangerous “no-knock” searches of homes were illegal, evidence obtained from them was admissible. If the courts rule that the search of Jones was illegal but the evidence can be admitted anyway, it will be a hollow victory for civil liberties indeed, as police will have strong incentives to push the envelope as new surveillance technologies emerge.
3. Justice Scalia’s majority opinion rested on grounds that actually have little application to new surveillance technologies. According to Scalia, since the GPS installation required trespassing private property, it “would have constituted a “search” within the original meaning of the Fourth Amendment.” While this isn’t necessarily wrong per se, as the concurrences by Justices Alito and Sotomayor point out ruling on this basis says nothing about more crucial questions about how the courts should assess searches that don’t require the direct invasion of physical property. As Justice Alito points out, “the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor.” As a result, the long-term consequences of this decision are unclear.
4. Justice Alito’s concurrence proposes that rather than focusing on whether a trespass of property has occurred, the Court should focus on whether or not an individual had a “reasonable expectation of privacy” (the standard the Court has generally used since the early 1970s.) Again, there’s nothing wrong with this in and of itself, but in practice these kinds of balancing tests are only as good as the judges applying them. (In theory, the rule that abortion regulations that constitute an “undue burden” are unconstitutional could provide robust protection for reproductive freedom; in practice, it doesn’t.) Alito focuses on the relatively extreme facts of the case (tracking that lasted a month seeking evidence for a non-violent crime), which opens up the possibility that the state will be given wide latitude under this standard.
5. By far the strongest opinion, then, is Justice Sonia Sotomayor’s concurrence. As she notes, “[a]wareness that the Government may be watching chills associational and expressive freedoms.” Given the rapidly expanding tools that the executive branch has at its disposal to conduct surveillance on citizens, and the general unwillingness of legislatures to restrain intrusive searches, it is crucial that the courts not be behind the curve in applying Fourth Amendment protections. United States v. Jones could be a good first step – but only if the many questions it leaves open are answered in a way that takes the protection of privacy seriously. Justice Sotomayor’s concurrence provides a good road map. 

Supreme Court to rule on whether drug-sniffing dogs violate 4th Amendment

(Considering the NDAA wiped out the 4th amendment, as well as the 5th, 6th and 8th amendments, I would wager that the Roberts Court rules that drug dogs do not violate the 4th amendment--as it no longer applies to US citizens anyway.--jef)

______________________________________________________

By Agence France-Presse
Friday, January 6, 2012

 

 

WASHINGTON — The US Supreme Court agreed Friday to hear a case to determine whether the use of police dogs sniffing for drugs outside homes is a violation of the constitutional rights of the residents.

The case involves a Miami homeowner accused of growing marijuana in his house, who contends the dog’s sniffing on his porch was the same as an illegal “search” of his home.

The Fourth Amendment requires police to present evidence to a judge that a crime has occurred, then obtain a warrant before they can search a home.

Miami-Dade police had no search warrant before Franky the dog signaled to his handler that he detected marijuana at the home of Joelis Jardines in December 2006.

Instead, they used Franky’s signal of sitting down as the primary evidence to obtain a warrant.

A subsequent police search found 179 marijuana plants in a hydroponic lab in the house. Jardines was arrested as he tried to flee out the back door.

The trial judge dismissed the evidence against Jardines, saying it was obtained through illegal search and seizure. A state appeals court reversed the ruling and reinstated marijuana charges against Jardines.

The Florida Supreme Court threw out the case again last April, saying lax restrictions on use of police dogs could lead to widespread abuse of homeowners’ privacy.

“There is simply nothing to prevent (police) agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen,” the Florida Supreme Court majority opinion said.

Florida Attorney General Pam Bondi appealed to the US Supreme Court.

Bondi argues in her legal filings that a dog breathing air outside a home is not the same as a search.

She also says a ruling that deprives police of using drug-sniffing dogs to gather evidence would seriously interfere with law enforcement.

“And most importantly, the Florida Supreme Court’s decision strips law enforcement of an irreplaceable tool in detecting those who grow marijuana in their living rooms; construct meth labs in their kitchens; hide bodies in their basements; or make bombs in their garages,” Bondi’s petition says.

“Dogs can detect all these activities by the simple act of breathing.”

Eighteen states and the territory of Guam filed briefs to support Bondi’s petition.

The Supreme Court has traditionally held that homes are entitled to greater privacy rights than public spaces or automobiles when police use dogs to search for illegal activity.

The justices are likely to issue a ruling by June.

Ominous Phrase

Here's a phrase that will sum up life in the US, under 2011 NDAA...guilty--regardless if proven innocent.

Gone are the 4th, 5th, 6th and 8th amendments -- 2/3 of the Bill of Rights.

Even if Obama doesn't execute the 2011 NDAA to its fullest extent, he has allowed all future presidents to wield that tyrannical power.

Understand that if you think I and those like me are making too big a deal of this issue.

The NDAA's Historic Assault on American Liberty

Monday, January 2, 2012 by Jonathan Turley's Blog
By signing into law the NDAA, the president has awarded the military extraordinary powers to detain US citizens without trial
by Jonathan Turley
 

President Barack Obama rang in the New Year by signing the NDAA law with its provision allowing him to indefinitely detain citizens. It was a symbolic moment, to say the least. With Americans distracted with drinking and celebrating, Obama signed one of the greatest rollbacks of civil liberties in the history of our country … and citizens partied in unwitting bliss into the New Year.

Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely (see the text of the statement here).

Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the president would not sign the NDAA because of the provision. That spin ended after sponsor Senator Carl Levin (Democrat, Michigan) went to the floor and disclosed that it was the White House and insisted that there be no exception for citizens in the indefinite detention provision.

The latest claim is even more insulting. You do not "support our troops" by denying the principles for which they are fighting. They are not fighting to consolidate authoritarian powers in the president. The "American way of life" is defined by our constitution and specifically the bill of rights. Moreover, the insistence that you do not intend to use authoritarian powers does not alter the fact that you just signed an authoritarian measure. It is not the use but the right to use such powers that defines authoritarian systems.

The almost complete failure of the mainstream media to cover this issue is shocking. Many reporters have bought into the spin of the Obama administration as they did the spin over torture by the Bush administration. Even today, reporters refuse to call waterboarding torture despite the long line of cases and experts defining waterboarding as torture for decades.

On the NDAA, reporters continue to mouth the claim that this law only codifies what is already the law. That is not true. The administration has fought any challenges to indefinite detention to prevent a true court review. Moreover, most experts agree that such indefinite detention of citizens violates the constitution.

There are also those who continue the longstanding effort to excuse Obama's horrific record on civil liberties by blaming either others or the times.

One successful myth is that there is an exception for citizens. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans' legal rights. Since the Senate clearly views citizens as not just subject to indefinite detention but even to execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

The Obama administration and Democratic members are in full spin mode – using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the next section, 1031, which offers no exemption for American citizens from the authorisation to use the military to indefinitely detain people without charge or trial.

Obama could have refused to sign the bill and the Congress would have rushed to fund the troops. Instead, as confirmed by Senator Levin, the White House conducted a misinformation campaign to secure this power while portraying the president as some type of reluctant absolute ruler, or, as Obama maintains, a reluctant president with dictatorial powers.

Most Democratic members joined their Republican colleagues in voting for this un-American measure. Some Montana citizens are moving to force the removal of these members who, they insist, betrayed their oaths of office and their constituents. Most citizens, however, are continuing to treat the matter as a distraction from the holiday cheer.

For civil libertarians, the NDAA is our Mayan moment: 2012 is when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.

Combating the Distortions Over NDAA Military Detentions

Does This Mean You? You'd Better Believe It

By Ralph Lopez - opednews.com
 

Perhaps the only thing more worrisome than the recently passed NDAA provisions for the indefinite military detention of American citizens is the extent and sophistication of the efforts to distort their true meaning in order to lead people to believe that American citizens are excluded.  Rep. Justin Amash took a rare bare-knuckled swipe in this most collegial of institutions to say that the NDAA was "carefully crafted to mislead the public."

That's the equivalent of calling some pretty powerful people whom you work with liars, on whose good graces passing your legislation may depend.  It's not done in this place unless it is something you feel very strongly about.

The deceptions in the language of the NDAA, intended to allow defenders to argue that the provisions do not apply to American citizens, center around Sections 1021 and 1022.

Section 1021 says in substance:

"Congress affirms that the authority of the President to use all necessary and appropriate force ...to detain...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention under the law of war...without trial until the end of the hostilities..."

This is how a court must read it when the words are parred down to their true meaning, without inoperative subordinate clauses.  You can see the full text below.  This is taken straight from the final House-Senate Conference Committee report (HR 1540 Conference), which is the language that was passed by the Senate after being passed by the House, on Dec. 15, Bill of Rights Day in an 86 - 14 vote of the Senate which sent it to the president's desk.

20 SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED
21 FORCES OF THE UNITED STATES TO DETAIN
22 COVERED PERSONS PURSUANT TO THE AU-
23 THORIZATION FOR USE OF MILITARY FORCE.
24 (a) IN GENERAL.--Congress affirms that the author-
25 ity of the President to use all necessary and appropriate
1 force pursuant to the Authorization for Use of Military
2 Force (Public Law 107--40; 50 U.S.C. 1541 note) includes
3 the authority for the Armed Forces of the United States
4 to detain covered persons (as defined in subsection (b))
5 pending disposition under the law of war.
6 (b) COVERED PERSONS.--A covered person under
7 this section is any person as follows:
8 (1) A person who planned, authorized, com-
9 mitted, or aided the terrorist attacks that occurred
10 on September 11, 2001, or harbored those respon-
11 sible for those attacks.
12 (2) A person who was a part of or substantially
13 supported al-Qaeda, the Taliban, or associated forces
14 that are engaged in hostilities against the United
15 States or its coalition partners, including any person
16 who has committed a belligerent act or has directly
17 supported such hostilities in aid of such enemy
18 forces.
19 (c) DISPOSITION UNDER LAW OF WAR.--The dis-
20 position of a person under the law of war as described
21 in subsection (a) may include the following:
22 (1) Detention under the law of war without
23 trial until the end of the hostilities authorized by the
24 Authorization for Use of Military Force.

Rep. Tom McClintock opposed the bill on the House floor saying it:

specifically affirms that the President has the authority to deny due process to any American it charges with "substantially supporting al Qaeda, the Taliban or any "associated forces'" -- whatever that means.

Would "substantial support" of an "associated force," mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don't know.

"Substantial support" of an "associated force" may imply citizens engaged in innocuous, First Amendment activities.  Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.

Tarek Mehanna, a young Muslim-American who is looking at life in prison just for talking bad about America, and surfing Jihadi websites in a soul search in which he consistently rejected attacking civilians, rejected an entrapment attempt by the FBI, and was finally kicked of the Jihadi website because he was talking young men away from violence.  If anyone was ever not a threat to America, it's him.  The government made many allegations, but these are the only ones it can prove.

This is what "substantially supporting Al Qaeda or associated forces" can mean now that this precedent has been set.  The next precedent will be sitting on the road blocking the deployment of wounded soldiers as Iraq Veterans Against the War did at Ft. Hood.  And the precedent after that will require even less, a "thought crime."  A boycott called for by Occupy Wall Street becomes "economic terrorism."

Most often missed in the discussion, of course, is that all accusations of who is "Al Qaeda" rest solely on the word of the government, with no witnesses, evidence, or any other form of due process available when the government is either wrong or lying.

Section 1021 also reads: "Nothing in this section shall be construed to affect existing law." But "existing law," in the words of Sen. Lindsey Graham a key mover of the bill, refers to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government's claim of authority to hold Americans arrested on American soil indefinitely.

Finally Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS" states:

(1) UNITED STATES CITIZENS.--The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

However, although the section says it is not "required" that US citizens be held in military detention, it is nevertheless "allowed."   This is a key spin of the disinformation on NDAA.

You clearly see the words "does not extend to citizens of the United States."  You can see that, Buford, can't you see that?  What you don't clearly see is the word "requires," which is not to say "does not allow."  It's the fine print.  To put it bluntly, it's a goddamned lawyer's trick.

Never think this does not apply to you.  It does.  If you want to do something about it go here:

"Montanans Launch Recall of Senators Who Approved NDAA Military Detention. Merry Christmas, US Senate,"

here, "Oath Keepers Launches National Effort to Recall and/or Remove Members of Congress Who Voted for NDAA Military Detention. Merry Christmas, U.S. Congress!"

or here, "Facebook: "Recall Every Congressman Who Voted for the NDAA."

Defense Act Affirms Indefinite Detention of US Citizens

Friday, December 30, 2011 by Inter Press Service

by Matthew Cardinale 

 

ATLANTA, Georgia - Civil liberties groups and many citizen activists are outraged over language in the National Defense Authorization Act of 2011 (NDAA) that appears to lay the legal groundwork for indefinite detention of U.S. citizens without trial.

David Gespass, president of the National Lawyers Guild, called it an "enormous attack on the U.S. and our heritage" and a "significant step" towards fascism, in an interview with IPS.

"For a very long time the U.S. has been moving towards what I personally think of as fascist - the integration of monopoly capital with state power, that's combined with an increased repression at home and greater aggression around the world. I don't think we're there yet, but I do see that we're going in that direction," Gespass said. "I think the... act is a significant step in that direction."

"It's quite severe. If this continues, people will not be able to count on constitutional protections at all," Debra Sweet, national director of the group World Can't Wait, told IPS.

Subtitle D of the act contains several controversial provisions on indefinite detention of terrorism suspects.

The executive branch - starting with the George W. Bush administration shortly after Sept. 11, 2001 - began indefinitely detaining terrorism suspects without trial at Guantanamo Bay, Cuba.
When those detentions were challenged in the courts, the federal government argued that the Authorization for Use of Military Force (AUMF), passed by the U.S. Congress on Sep. 18, 2001, allowed for the detentions to occur. In 2004, the Supreme Court agreed in Hamdi v. Rumsfeld.

"I know a lot of people who voted in favour of it (AUMF) back then didn't think they voted in favor of what ended up happening, but what it said is the president is authorized (to do) whatever is necessary," Gespass said. "The language as I recall it is not at all restrictive."

The current language in the NDAA seeks to legislatively affirm that the U.S. has the right to detain people, even though the courts already ruled, at least in the case of Hamdi, a prisoner captured during armed conflict in Afghanistan, that it already has that power.

Section 1021 defines who can be detained by the military.

The definition of "covered persons" under the provision includes not only those who planned, authorized, committed, or aided the terrorist attacks of Sept. 11, 2011, but also "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including anyone who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Critics say problems with this language include the vagueness of the terms "substantial support", "belligerent act", or "directly supported".

Moreover, because the act allows for individuals suspected of support or belligerence to be held indefinitely without trial - until the end of the "war on terror", which could be never - there could be no opportunities for these individuals to challenge the vagueness of the charges against them.

Section 1021(e) says the act does not alter any rights of U.S. citizens, meaning that the Bill of Rights of the Constitution remains "intact." It might be up to the courts, however, to eventually determine whether the application of these NDAA provisions to a U.S. citizen would be constitutional.

However, if they are being detained indefinitely with no lawyer, then how does anyone know they are there, to appeal to the civilian courts on their behalf?

Another section says "the requirement to detain a person in military custody under this section does not extend to citizens of the United States". It does not say military custody is not an option; merely that it is not required.

The NDAA, as negotiated between the U.S. House and Senate, passed the U.S. House 283-136 on Dec. 14. It passed the U.S. Senate, in a vote of 86 to 13, on Dec. 15, with both Democrats and Republicans among those opposing it.

The bill was presented to President Barack Obama on Dec. 21 and signed Dec. 31, 2011.

However, numerous members of Congress have raised concerns.

Prior to its passage, on Dec. 12, Representatives Hank Johnson, Martin Heinrich and 30 others sent a letter to the chairs and ranking members of the U.S. House and Senate's respective Armed Services Committees.

They expressed their opposition to "an expansive authorization for detention of and use of military force against broadly defined adversaries substantially exceeding the scope of such authorizations already in law."

"The expanded authority has no geographical limits, provides authority for open-ended armed conflict, and is unacceptably broad," they wrote.

The NDAA "authorizes indefinite military detention of suspected terrorists without protecting U.S. citizens' right to trial," they wrote.
"We are deeply concerned that this provision could undermine the Fourth, Fifth, Sixth, Seventh, and Eighth amendment rights of U.S. citizens who might be subjects of detention or prosecution by the military," they wrote.

On Dec. 15, Senator Dianne Feinstein introduced the Due Process Guarantee Act of 2011 (DPGA), with 15 co-sponsors.

This legislation states, "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

A companion piece was introduced in the U.S. House on Dec. 16; it has 29 co-sponsors.

Meanwhile, in Montana, activists have begun an effort to recall their entire Congressional delegation for supporting the NDAA.

The real definition of Terrorism

By Glenn Greenwald - Salon.com

The FBI yesterday announced it has secured an indictment against Faruq Khalil Muhammad ‘Isa, a 38-year-old citizen of Iraq currently in Canada, from which the U.S. is seeking his extradition. The headline on the FBI’s Press Release tells the basic story: “Alleged Terrorist Indicted in New York for the Murder of Five American Soldiers.” The criminal complaint previously filed under seal provides the details: ‘Isa is charged with “providing material support to a terrorist conspiracy” because he allegedly supported a 2008 attack on a U.S. military base in Mosul that killed 5 American soldiers. In other words, if the U.S. invades and occupies your country, and you respond by fighting back against the invading army — the ultimate definition of a “military, not civilian target” — then you are a . . . Terrorist.

Here is how the complaint, in the first paragraph, summarizes the Terrorism charge against ‘Isa:

By “outside of the United States,” the Government means: inside Iraq, ‘Isa’s country. The bulk of the complaint details conversations ‘Isa allegedly had over the Internet, while he was in Canada, with several Tunisians who wanted to engage in suicide attacks aimed at American troops in Iraq; he is not alleged to have organized the Mosul attack but merely to have provided political and religious encouragement (the network of which he was allegedly a part also carried out a suicide attack on an Iraqi police station, though ‘Isa’s alleged involvement is confined to the attack on the U.S. military base that killed the 5 soldiers along with several Iraqis, and the Terrorism indictment is based solely on the deaths of the U.S. soldiers).

In an effort to depict him as a crazed, Terrorist fanatic, the complaint includes this description of conversations he had while being monitored:

Is that not exactly the mindset that more or less anyone in the world would have: if a foreign army invades your country and proceeds to brutally occupy it for the next eight years, then it’s your solemn duty to fight them? Indeed, isn’t that exactly the mentality that caused some young Americans to enlist after the 9/11 attack and be hailed as heroes: they attacked us on our soil, and so now I want to fight them?

Yet when it’s the U.S. that is doing the invading and attacking, then we’re all supposed to look upon this very common reaction with mockery, horror, and disgust– look at these primitive religious fanatic Terrorists who have no regard for human life — because the only healthy, normal, civilized reaction someone should have to the U.S. invading, occupying, and destroying their country is gratitude, or at least passive acquiescence. Anything else, by definition, makes you a Terrorist. That’s because it is an inherent American right to invade or occupy whomever it wants and only a Terrorist would resist (to see one vivid (and darkly humorous) expression of this pathological, imperial entitlement, see this casual speculation from a neocon law professor at Cornell that Iran may have committed an “act of war” if it brought down the American drone that entered its airspace and hovered over its soil without permission: “if it is true, as the Iranians claim, that the drone did not fall by accident but was brought down by Iranian electronic means, then isn’t that already an act of war?”).

It’s one thing to condemn ‘Isa’s actions on moral or ethical grounds: one could argue, I suppose, that the solemn duty of every Iraqi was to respectfully treat the American invaders as honored (albeit uninvited) guests, or at least to cede to invading American troops the monopoly on violence. But it’s another thing entirely to label someone who does choose to fight back as a “Terrorist” and prosecute them as such under charges that entail life in prison (by contrast: an Israeli soldier yesterday killed a Palestinian protester in a small West Bank village that has had much of its land appropriated by Israeli settlers, by shooting him in the face at relatively close range with a tear gas cannister, while an Israeli plane attacked a civilian home in Gaza and killed a father and his young son while injuring several other children; acts like that, or the countless acts of reckless or even deliberate slaughter of civilians by Americans, must never be deemed Terrorism).

Few things better illustrate the utter meaninglessness of the word Terrorism than applying it to a citizen of an invaded country for fighting back against the invading army and aiming at purely military targets (this is far from the first time that Iraqis and others who were accused of fighting back against the invading U.S. military have been formally deemed to be Terrorists for having done so). To the extent the word means anything operationally, it is: he who effectively opposes the will of the U.S. and its allies.

This topic is so vital because this meaningless, definition-free word — Terrorism — drives so many of our political debates and policies. Virtually every debate in which I ever participate quickly and prominently includes defenders of government policy invoking the word as some sort of debate-ending, magical elixir: of course President Obama has to assassinate U.S. citizens without due process: they’re Terrorists; of course we have to stay in Afghanistan: we have to stop The Terrorists; President Obama is not only right to kill people (including civilians) using drones, but is justified in boasting and even joking about it, because they’re Terrorists; of course some people should be held in prison without charges: they’re Terrorists, etc. etc. It’s a word that simultaneously means nothing and justifies everything.

* * * * *

Here are two videos relating somewhat to this: (1) Sen. Carl Levin claimed as part of the debate over the detention bill he sponsored with John McCain that it was the Obama White House that demanded the removal of language that would have exempted U.S. citizens from military detention without charges:

So Long to the 4th Amendment...

So, now if you're openly critical of the govt and/or its corporate masters, that's just mere steps away from terrorism--you'll find yourself whisked away to one of Glenn Beck's FEMA camps or Gitmo for the rest of your days. Constitutionally guaranteed rights gone like that!--jef

Obama Will Not Veto NDAA Military Detention of Americans Because He Requested It

Ralph Lopez - December 10, 2011

Sen. Carl Levin (D-MI) on Senate floor explaining it was Obama who requested the provision for indefinite military detention of American citizens without charge or trial.     Senator Diane Feinstein recently confirmed that she was unable to excise Section 1031 in an email:

Senator Feinstein Confirms President and Military Can Detain US Citizens Without a Trial     Like you, I oppose these provisions.  Section 1031 is problematic because it authorizes the indefinite detention of American citizens without due process.  In this democracy, due process is a fundamental right, and it protects us from being locked up by the government without charge.  For this reason, I offered an amendment to prohibit the indefinite detention of U.S. citizens without trial or charge.  Unfortunately, on December 1, 2011, this amendment failed by a vote of 45-55.

    I was, however, able to reach a compromise with the authors of the defense bill to state that no existing law or authorities to detain suspected terrorists are changed by this section of the bill.  While I would have preferred to have restricted the government’s ability to detain U.S. citizens without charge, this compromise at least ensures that the bill does not expand the government’s authority in this area.

Anonymous Message

Transcript: Dear brothers and sisters. Now is the time to open your eyes!

In a stunning move that has civil libertarians stuttering with disbelief, the U.S. Senate has just passed a bill that effectively ends the Bill of Rights in America.

The National Defense Authorization Act is being called the most traitorous act ever witnessed in the Senate, and the language of the bill is cleverly designed to make you think it doesn't apply to Americans, but toward the end of the bill, it essentially says it can apply to Americans "if we want it to..."  FULL TRANSCRIPT AT YOUTUBE

Col. Lawrence Wilkerson, former Chief of Staff to Secretary of State Colin Powell

Tennessee passes law criminalizing posting of any image that someone finds offensive

Sunday, June 12, 2011 by: J. D. Heyes

Just when you thought lawmaking in America couldn't get any more ridiculous comes a new piece of legislation that quite possibly could be the most outrageous, if not unconstitutional law ever passed.

The geniuses in the Tennessee legislature passed a bill which makes it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to anyone who sees it. Gov. Bill Haslam perpetuated the idiocy when he signed it into law last week.

As if the United States didn't already jail more people than Russia or China, persons found guilty of violating this new legal monstrosity could face a year in prison along with a $2,500 fine.

Only, who gets to decide what is likely to "frighten, intimidate or cause emotional distress" to someone? Doesn't everyone find something emotionally stressful or frightening? Couldn't someone find a picture of a teddy bear, a flower or even a baby offensive and distressing?

What's more, the "victim" need not even be the intended recipient of the image. "Anyone who sees the image is a potential victim. If a court decides you "should have known" that an image you posted would be upsetting to someone who sees it, you could face months in prison and thousands of dollars in fines," says a report detailing the provisions of the bill.

Besides the obvious insult to personal liberties and the sheer lunacy of this act, it also gives state law enforcement authorities unprecedented access to personal online communications.

"The government can get access to 'images or communications' posted to a social networking site by offering 'specific and articulable facts,' suggesting that the information sought is 'relevant and material to an ongoing criminal investigation,'" said the report. So much for any pretense of privacy.

Legal experts are already predicting this piece of "legislation" won't stand. In fact, since Tennessee is within the legal purview of the U.S. Sixth Circuit Court, "it is bound by that court's Warshak decision, which held that the Fourth Amendment requires the government to obtain a full search warrant in order to access e-mail communications," the report said.

It boggles the mind how such legislation can even be introduced, much less passed and signed into law. The collective I.Q. of the entire Tennessee legislature must have fallen three dozen points or more after this turkey hit the books.

We can almost hear the lawyers stampeding to court over this one. If we could buy stock in the outcome of court cases, it would be hard to pass up investing in this sure thing.

US Supreme Court Deals Mortal Blow to Privacy

Sunday, June 5, 2011 by the Atlanta Journal-Constitution

by Michael Mears, Common Dreams

 

Last month, the United States Supreme Court, in an 8-1 decision in the case of Kentucky v. King, told the police in our nation that they may break into a home without a warrant if they believe that the occupants might be in the act of destroying evidence.

Only Justice Ruth Bader Ginsberg realized that this might be the last nail in the coffin of one of the most important personal protections left for Americans. While the politicians in Washington are fiddling away our economic security, the Supreme Court has lit a match that will burn up what is left of the right of privacy and the Fourth Amendment’s protections against unreasonable searches and seizures.

While the tax-avoiding patriots were dumping taxable tea in the harbor at Boston, men like Patrick Henry and John Adams were more concerned, and rightly so, with the loss of personal liberties in the Colonies.

Perhaps none of the “protective” amendments to the U.S. Constitution has as much connection with the events leading up to the American Revolution against England and its king than does the Fourth Amendment.

This amendment, more than all of the other “Bill of Rights,” is directly associated with specific acts that led, ultimately, to the call for a complete break from England and for the establishment of a separate nation.

Perhaps the most succinct observation about the dichotomy between those who see a continuing erosion of the Fourth Amendment and those who see it as an impediment to law enforcement officers and prosecutors can be found in a more reasoned Supreme Court decision from 1948. In that opinion, the court stated:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence ... [it demands that] the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

In February 1761 in Boston, there was a widely publicized debate over the issuance of general, limitless search warrants called Writs of Assistance. James Otis, a lawyer in Colonial Massachusetts, in a famous 1761 debate, condemned the use of these general search warrants, declaring them to be untenable in a land of free men.

But he did make a suggestion that later formed the basis for part of the Fourth Amendment. He suggested that any lawful searches be made only pursuant to warrants that contained explicit restrictions as to where the search was to take place and to the objects of the search, and that the warrants be issued only upon the making of specific oaths by the person seeking to carry out the search.

Patrick Henry followed the news reports of the debate over the use of these general search warrants (those authorizing searches at any time the holder of the search warrant deemed it necessary to search someone’s home or business) and he also argued against the abuses of such writs of assistance.

In 1778, during the constitutional debates before passage of the Bill of Rights, he argued for congressional consideration of a series of amendments to the constitution, one of which guaranteed the security of the citizenry against unreasonable government searches. This proposed amendment quite clearly presupposed that an “unreasonable” search could be avoided only by use of a warrant, and only if that warrant met certain standards.

After the adoption of the Fourth Amendment there appeared to be a general understanding of the nature and extent of the protections afforded citizens from searches without proper judicial warrants.

Up until the Supreme Court’s decision in Kentucky v. King, there was a general acknowledgment that the Fourth Amendment is a living creation with the ability to adapt its protections to new and ever-changing technology. Despite some erosion of the historical protections found in the Bill of Rights, there has been the hope that the Supreme Court would continue to regard the Fourth Amendment as necessary to protect citizens from the government.

Unfortunately, eight members of the present Supreme Court have decided that the Fourth Amendment is nothing more than a historical relic that has outlived its welcome in our “free” society.

This Is What A Police State Looks Like

Saturday, May 21, 2011 by CommonDreams.org

by Rania Khalek

 

The late Chalmers Johnson often reminded us that “A nation can be one or the other, a democracy or an imperialist, but it can’t be both. If it sticks to imperialism, it will, like the old Roman Republic, on which so much of our system was modeled, lose its democracy to a domestic dictatorship.” His warning rings more true by the day, as Americans watch the erosion of their civil liberties accelerate in conjunction with the expansion of the US Empire.

When viewed through the lens of Johnson’s profound insights, the Supreme Court’s recent ruling in Kentucky v. King makes perfect sense. On May 13, in a lopsided 8-1 ruling, the Court upheld the warrantless search of a Kentucky man’s apartment after police smelled marijuana and feared those inside were destroying evidence, essentially granting police officers increased power to enter the homes of citizens without a warrant.

Under the Fourth Amendment, police are barred from entering a home without first obtaining a warrant, which can only be issued by a judge upon probable cause. The only exception is when the circumstances qualify as “exigent,” meaning there is imminent risk of death or serious injury, danger that evidence will be immediately destroyed, or that a suspect will escape. However, exigent circumstances cannot be created by the police.

In this case, the police followed a suspected drug dealer into an apartment complex and after losing track of him, smelled marijuana coming from one of the apartments. After banging on the door and announcing themselves, the police heard noises that they interpreted as the destruction of evidence. Rather than first obtaining a warrant, they kicked down the door and arrested the man inside, who was caught flushing marijuana down the toilet.

The Kentucky Supreme Court had overturned the man’s conviction and ruled that exigent circumstances did not apply because the behavior of the police is what prompted the destruction of evidence. Tragically, an overwhelming majority of the Supreme Court upheld the Conviction. Writing for the majority, Justice Samuel Alito wrote that citizens are not required to grant police officers permission to enter their homes after hearing a knock, but if there is no response and the officers hear noise that suggests evidence is being destroyed, they are justified in breaking in.

In her lone and scathing dissent, Justice Ruth Bader Ginsburg agreed with the Kentucky Supreme Court, arguing that the Supreme Court’s ruling “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.” She went on to stress that “there was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization.”

Not only did the police instigate the destruction of evidence by banging at the door and shouting “Police, police,” but they could have easily obtained a warrant since they likely had probable cause. There is no reason to believe that delaying the search to obtain a warrant, as legally required, would have led to the destruction of evidence. This was pure laziness and contempt for the constitution on part of the officers.

An argument could be made that entering without a warrant saves money, time, and resources, especially if it’s obvious that a crime is being committed. However, the protection of our rights is worth the money, time, and resources. Living in a free society requires that we make these sacrifices, even at the peril of our safety if need be. In fact, I would argue that the wasting of money, time, and resources is the fault of a deeply flawed drug policy, not the protection of those pesky civil liberties always getting in the way of law enforcement.

As for the implications of such a ruling, arming the police with more power will have serious consequences for an already institutionally biased criminal justice system in regards to the “war on drugs.” Jordan C. Budd notes the existence of a “poverty exception” to the Constitution, particularly the Fourth Amendment, a bias that renders much of the Constitution irrelevant at best, and hostile at worst, to the American poor. While attacks on the Fourth Amendment negatively affect all members of society, minorities and the poor, generally the targets of the drug war, are more vulnerable to the abuse of power that follows.

Chief Judge Kozinski of the Ninth Circuit recently decried this “unselfconscious cultural elitism” in a case upholding the ability of police to clandestinely attach a GPS tracking device to the underside of a car parked in the driveway of a modest home:

Poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. . . . When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. . . .We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

The same holds true in the context of warrantless door-busting. In the Kentucky case the police smelled marijuana in the hall of the apartment complex that the initial suspect they were tracking had taken refuge in. An apartment hall is a common space shared by many people, who could be emitting various odors from inside their homes, such as cooked onions or fresh paint. Had this been a single-family home in the suburbs, there is no way the smell of pot would have been detected from the doorway of the house across the street.

Scott Lemieux made this point well when he wrote:

As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.

The failure of society at large to secure the rights of all segments of the population, has resulted in what can only be described as a nail in the coffin of our right to privacy, at least for those who can afford it.

In her dissent, Ginsburg went on to ask, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?” While I agree with Ginsberg’s premise, I would go further in arguing that the war on drugs has created a dangerous precedent where even when a search warrant is obtained, we are far from secure in our homes.

For example, about a week prior to the Kentucky ruling, police authorities in Pima County, Arizona, fired 71 shots in seven seconds at 26 year old Jose Guerena, a former Marine who served two tours in Iraq. Guerena was murdered in the middle of the night while his terrified wife and 4-year old son hid in the closet. The SWAT team that killed him was there to serve a narcotics search warrant as part of a multi-house drug crackdown. As Guerena lay dying with his wife pleading for help, the SWAT team barred paramedics from entering the home.

Guerena’s wife asserts that her husband grabbed his gun because he thought his family was the victim of a home invasion, not a police raid. This is understandable given the family’s location in Arizona, a state where anti-immigrant militants are notorious for the cold-blooded murder of hispanic families. Deputies initially justified their actions by claiming that Guerena fired at officers but later said he kept the gun safety on and never pulled the trigger.

As it turns out, Guerena’s murder is just the most recent in a long line of botched paramilitary operations. According to an investigation carried out by the CATO Institute, America has seen a disturbing militarization of its civilian law enforcement over the last 25 years, along with a dramatic and unsettling rise in the use of paramilitary police units for routine police work. In fact, the most common use of SWAT teams today is to serve narcotics warrants, usually with forced, unannounced entry into the home.

The CATO study found that some 40,000 of these raids take place every year, and are needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they’re sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers.

These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors. The raids terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocent suspects.

Those who suggest that the Supreme Court’s decision in King v. Kentucky is ‘no big deal’ or that it’s ‘alarmist’ to think otherwise, must not understand the extent to which the boundaries are pushed when the Court makes exceptions to our rights. Nor do they comprehend that once lost, civil liberties are impossible to reclaim. With SWAT teams already injuring and at times killing the wrong people to serve warrants, just imagine the abuse to come given the increased power the Court has bestowed upon the state.

Considering the level of brutality we have been dishing out around the world, from the “war on drugs” to the “war on terror,” the erosion of our civil liberties is sadly inevitable. Did we really think that we could wage war and occupy other nations with checkpoints, invasive surveillance, and brutal violence without these same policing tactics spreading to our country?

After sending hundreds of thousands of soldiers abroad to terrorize people in their homes around the world, we shouldn’t be surprised that our government would eventually employ the same actions against its own citizens. Just as Chalmers Johnson predicted, our imperialism abroad is destroying what is left of our democracy at home. From warrantless wiretapping to warrantless door-busting, this is what a police state looks like.

Warrant needed to snoop on your emails, court finally rules

By Daniel Tencer - Tuesday, December 14th, 2010

After many years of legal uncertainty, a federal appeals court has finally declared that emails have the same Fourth Amendment protections as regular mail and telephone calls.
"Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection," the Sixth Circuit Court of Appeals ruled (PDF).

If the ruling is not overturned by the Supreme Court, it will put an end to the practice of law enforcement agents using court orders, rather than warrants, to gain access to emails. Court orders require a much lower standard than warrants.

Kevin Bankston of the digital rights group EFF told Wired.com he expects Internet service providers will comply with the ruling, meaning they will start requesting warrants when law enforcement requests access to emails.

Privacy advocates say law enforcement has been using a loophole in the 1986 Stored Communications Act to get emails without a warrant. Under that law, information stored on servers is subject only to a court order.

As Wired notes, the law was written at a time when emails -- then still a novelty -- weren't stored on remote servers. But today's email services, such as Hotmail and Gmail, use servers to store all emails, giving law enforcement warrantless access.

A group of businesses, including Microsoft, Google and AOL, have been lobbying the US to update its laws so that all emails require a warrant.

At issue in the Sixth Circuit's ruling was the criminal case of Steven Warshak, founder of the company that sells Enzyte "male enhancement" pills. Warshak was given a 25-year sentence in 2008 after being convicted of 93 counts of fraud, conspiracy and money laundering.

Warshak appealed the ruling, saying his Fourth Amendment rights were violated when investigators failed to obtain a warrant for his emails. In its ruling Tuesday, the Sixth Circuit Court of Appeals agreed with Warshak and effectively declared parts of the Stored Communications Act to be unconstitutional.

However, the court also said that law enforcement agents "acted in good faith" in using the Stored Communications Act to obtain the emails, so it will not vacate Warshak's conviction. ZDNet reports that he may see a lesser sentence as a result.

"Today's decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue, an issue made all the more important by the fact that current federal law ... allows the government to secretly obtain emails without a warrant in many situations," the EFF said in a statement.

"We hope that this ruling will spur Congress to update that law ... so that when the government secretly demands someone's email without probable cause, the email provider can confidently say: 'Come back with a warrant.'"

Poverty's Penalty

(When you are so poor you can barely afford to pay for food for your family and gas for your car so that you can drive to interviews, things like your insurance can lapse. I know in Texas, our mass transit system isn't as effective as other states--it is said you have to drive everywhere--so driving is paramount, even if your coverage lapses. If your insurance lapses before your inspection expires, they won't inspect your car. If you are driving to your interview and get pulled over by the police for an expired inspection, they'll discover you don't have insurance and arrest you on the spot. That is an example of the "poverty penalty." You have to drive to your job interview to get the job to pay you the money to get your car legal. But you are penalized for it. You pay more to be poor. But in California, if you're on welfare, you don't even get your 4th Amendment rights anymore!--jef)

***

by Christopher Brauchli | Monday, September 6, 2010 by CommonDreams.org

". . .[W]ith liberty and justice for all." 

~The Pledge of Allegiance

Opinions from Federal Circuit Courts of Appeal are of interest to a variety of people. Lawyers read them in order to learn what the law is with respect to issues that have been ruled on by the Courts in the Circuits in which they live. The poor, who live within the jurisdiction of the Ninth Circuit Court of Appeals, read them to learn how their constitutional rights differ from those of the well off. They were reminded of this in August by the same court that had tutored them three years earlier in the case of Rochio Sanchez v. County of San Diego.

Sanchez was decided by the 9th Circuit Court of Appeals in April 2007 and the U.S. Supreme Court announced in November of that year that it would not review the court's decision. The case stands for the proposition that it is OK to search people's homes without a warrant. Before my readers rush to add strong locks to all their doors I must reassure them. The case has no applicability to my readers. Their homes are protected by the Fourth Amendment to the U.S. Constitution that bans unreasonable searches and seizures. The people in California whose homes are not protected by the Fourth Amendment are those on welfare.

In 1997, the San Diego District Attorney came up with "Project 100%." Under the program those wanting to participate in the county welfare program must consent to unannounced visits from members of the Public Affairs Fraud Division who walk through the house looking in drawers, medicine cabinets, etc. to make sure no crimes are being committed. The practical consequences are that welfare recipients are forced to trade the protection afforded by the Fourth Amendment for welfare benefits. That is not, of course, how the judge who wrote for the majority sees it. It is how Judge Harry Pregerson, writing for the dissenters, sees it. He said: "This case is nothing less than an attack on the poor. San Diego's program strips these individuals of their rights of privacy. . . . This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving subsides."

The poor have now learned of yet another way in which the protection given many by the Fourth Amendment does not benefit them. It has to do with curtilage. That is the area around the home and includes such things as porches, driveways, front walks, etc. For 4th Amendment purposes curtilage was treated the same as the inside of the house. A warrant was needed to search the curtilage. The case of U.S. v. Pineda-Moreno in which a final decision was made in August changed that.

Pineda-Moreno addressed the question of whether the police can come onto a driveway at night without a warrant and attach a tracking device to the resident's car. The answer given by the 9th Circuit court is that it's OK. Judge Kozinski, one of the dissenters in the earlier case wrote a dissent this time around.

He began saying: " Having previously decimated the protections the Fourth Amendment accords to the home itself. . . . Our court now proceeds to dismantle the zone of privacy we enjoy in the home's curtilage . . . . 1984 may have come a bit later than predicted, but it's here at last." He observed that the majority justified its holding by saying that delivery people, children, etc. could use the driveway and sidewalk to get to the front door and, therefore, the resident had no expectation of privacy there. He observed that people with gated houses, electric fences, etc. were unaffected by the ruling since the general public cannot get near their curtilage. Addressing the insensitivity of the majority to the plight of the poor he said: "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist. No truly poor people are appointed as federal judges. . . . The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. . . . [T]he constitution doesn't prefer the rich over the poor. . . . The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism. . . . Today's decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come." Sadly, given the proclivities of today's Supreme Court, he's probably right.