RSSCategory: Civil Rights

The Fourth Amendment should be top secret

March 18, 2014 | By | Reply More

Here’s a well written article by Conor Friedersdorf in The Atlantic. Of course, it’s tongue in cheek.

But listen to the serious argument by an attorney who represented Homeland Security, and a response by Freedom of Press Foundation:

“You can’t debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you’re discussing to the very people you’re trying to gather intelligence about,” he said. “Your targets are listening to the debates.” In fact, he continued, they’re listening particularly closely. For that reason, publicly debating intelligence techniques, targets and limits is foolish. As soon as targets figure out the limits of what authorities can touch, they’ll change their tactics accordingly. In his view, limits should be set in secret. A class of overseers with security clearances can make the necessary judgment calls.

Trevor Timm, co-founder of the Freedom of the Press Foundation, attempted to defend normal democratic debate. “What separates us from countries like Russia and China is that we can have these types of debates with an informed public that are completely aware of what types of surveillance are available to governments and what the legal standards are,” he argued. “We’re not specifically debating who the NSA is going to spy on, but whole surveillance regimes. If we didn’t debate that in this country, the Fourth Amendment would be classified. But it’s not.”

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Living in a dual state

February 18, 2014 | By | 1 Reply More

Chris Hedges explains that U.S. citizens now live in a “dual state”:

We live in what the German political scientist Ernst Fraenkel called “the dual state.” Totalitarian states are always dual states. In the dual state civil liberties are abolished in the name of national security. The political sphere becomes a vacuum “as far as the law is concerned,” Fraenkel wrote. There is no legal check on power. Official bodies operate with impunity outside the law. In the dual state the government can convict citizens on secret evidence in secret courts. It can strip citizens of due process and detain, torture or assassinate them, serving as judge, jury and executioner. It rules according to its own arbitrary whims and prerogatives. The outward forms of democratic participation—voting, competing political parties, judicial oversight and legislation—are hollow, political stagecraft. Fraenkel called those who wield this unchecked power over the citizenry “the prerogative state.”  The masses in a totalitarian structure live in what Fraenkel termed “the normative state.” The normative state, he said, is defenseless against the abuses of the prerogative state. Citizens are subjected to draconian laws and regulations, as well as arbitrary searches and arrests. The police and internal security are omnipotent. The internal workings of power are secret. Free expression and opposition political activity are pushed to the fringes of society or shut down. Those who challenge the abuses of power by the prerogative state, those who, like Snowden, expose the crimes carried out by government, are made into criminals. Totalitarian states always invert the moral order. It is the wicked who rule. It is the just who are damned.

The fact that we feel free does not mean that we are free:

Societies that once had democratic traditions, or periods when openness was possible, are often seduced into totalitarian systems because those who rule continue to pay outward fealty to the ideals, practices and forms of the old systems. This was true when the Emperor Augustus dismantled the Roman Republic. It was true when Lenin and the Bolsheviks seized control of the autonomous soviets and ruthlessly centralized power. It was true following the collapse of the Weimar Republic and the rise of Nazi fascism. Thomas Paine described despotic government as a fungus growing out of a corrupt civil society. And this is what has happened to us. No one who lives under constant surveillance, who is subject to detention anywhere at any time, whose conversations, messages, meetings, proclivities and habits are recorded, stored and analyzed, can be described as free. The relationship between the U.S. government and the U.S. citizen is now one of master and slave. Yet the prerogative state assures us that our rights are sacred, that it abides by the will of the people and the consent of the governed.

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Terrorism = Criticism of Terrorism

September 25, 2013 | By | Reply More

It is my belief that the reckless use of drones is a form of terrorism, and that the U.S. is engaging in the reckless use of drones against various populations in the Middle East. Therefore I noticed Glenn Greenwald recent article that the definition of “terrorism” has been broadened even further by U.K authorities:

A well-known and highly respected Yemeni anti-drone activist was detained yesterday by UK officials under that country’s “anti-terrorism” law at Gatwick Airport, where he had traveled to speak at an event. Baraa Shiban, the project co-ordinator for the London-based legal charity Reprieve, was held for an hour and a half and repeatedly questioned about his anti-drone work and political views regarding human rights abuses in Yemen.

When he objected that his political views had no relevance to security concerns, UK law enforcement officials threatened to detain him for the full nine hours allowed by the Terrorism Act of 2000, the same statute that was abused by UK officials last month to detain my partner, David Miranda, for nine hours.

Shiban tells his story today, here, in the Guardian, and recounts how the UK official told him “he had detained me not merely because I was from Yemen, but also because of Reprieve’s work investigating and criticising the efficacy of US drone strikes in my country.”

The notion that Shiban posed some sort of security threat was absurd on its face. As the Guardian reported Tuesday, “he visited the UK without incident earlier this summer and testified in May to a US congressional hearing on the impact of the covert drone programme in Yemen. Viewing anti-drone activism as indicative of a terrorism threat is noxious.”

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A Supreme Court Opinion to heed

July 10, 2013 | By | Reply More
A Supreme Court Opinion to heed

Back in 1971, Justice Hugo Black issued an extremely well-reasoned concurring opinion in the case of New York Times v United States. Many things have changed since 1971, but this clear-headed opinion addresses many aspects of the current controversy involving Edward Snowden. Back in 1971, The NYT had begun publishing installments of the then-classified Pentagon Papers, which indicated that America’s war efforts were a sham, and that America had little to no hope of success in the conflict. This was sharply at odds with what U.S. politicians had be telling the public. In response to the initial publication installments, President Richard Nixon’s Attorney General, John Mitchell, filed an injunction action seeking to prevent publication of further installments. The injunction was granted, and the case quickly rose up for review by the United States Supreme Court. There was no majority opinion, but the divided court did vote 6-3 to reverse the trial court and to allow the NYT to continue publication. The following excerpts are from Justice Black’s concurrence:

“[T]he injunction against the New York Times should have been vacated without oral argument when the cases were first presented … . [E]very moment’s continuance of the injunctions … amounts to a flagrant, indefensible, and continuing violation of the First Amendment. … When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights … . In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe … . In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … [W]e are asked to hold that … the Executive Branch, the Congress, and the Judiciary can make laws … abridging freedom of the press in the name of ‘national security.’ … To find that the President has ‘inherent power’ to halt the publication of news … would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ … The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security … . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.

The government had based its case on the Espionage Act of 1917. I’m reprinting an excerpt from the Act immediately below. One can immediately see how vague (arguably constitutionally defectively vague) and broad (arguably constitutionally overbroad) at least this portion of the Act is, something to keep in mind when considering that this is the law the government is supposedly enforcing in modern times to punish whistle-blowers, including Bradley Manning and Edward Snowden.

Section 793(e) of the act (a section that Snowden was apparently charged under) makes it a criminal offense to do the following:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

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Democracy: More than majority rule

July 7, 2013 | By | Reply More

At Salon.com, Nicholas Buccola explains that a true democracy does more than merely count the votes. It is more than mob rule. The context is Justice Scalia’s dissent in United States v. Windsor.

While the right to govern ourselves collectively is part of the “the beauty of what our Framers gave us,” it is not the whole of it. This right exists alongside the rights of individuals to be treated with dignity and respect. In his Windsor dissent Scalia all but mocks the majority’s concern for the “personhood and dignity” of individuals and contends that not only should the government be free to exclude same-sex couples from the institution of marriage, but he reminds us repeatedly that he believes the government should be empowered – if the majority wills it – to imprison homosexuals for making love in the privacy of their own homes.

What one cannot detect in Scalia’s Windsor dissent is an appreciation for the idea that true democracy entails not only collective self-government, but respect for the right of the individual to govern his own conduct. Scalia’s dissent has all the markings of a brand of democracy too shallow to accept. Genuine democracy – like the conception of democracy defended by Frederick Douglass – is far more worthy of celebration this Fourth of July weekend.

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Cops fail to ask driver if he’s been drinking at DUI checkpoint

July 7, 2013 | By | Reply More

There is a lot of ignorance of the U.S. Constitution out on the streets. Consider this video made by a driver who committed the crime of asserting his Constitutional rights at a DUI checkpoint.

The written account of the incident is here.

More on motor vehicle checkpoints here and here. It’s clear from videos like this (there are many) it is clear that there is a big difference between the law on the books and the law on the streets.

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Brazilian police officer refuses to obey orders out of conscience

June 27, 2013 | By | Reply More
Brazilian police officer refuses to obey orders out of conscience

Amazing footage from Brazil, where the police where gearing up to confront protesters:

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Special type of due process at debt collection courts

June 12, 2013 | By | Reply More

Here’s a report from New York’s bursting collections dockets:

Over the past decade, the number of debt collection lawsuits filed in New York’s courts has exploded, with upwards of 200,000 cases filed in 2011 alone. Creditors and debt buyers engage in an array of fraudulent and deceptive debt collection practices that siphon billions of dollars from New York’s low-income neighborhoods and communities of color. Abusive debt collection falls along a continuum of discriminatory financial practices that pervade low-income neighborhoods and communities of color, long targeted by high-cost and predatory financial services providers.

The creditors and debt buyers that bring these lawsuits routinely engage in “sewer service” — falsely claiming to the courts that they have served people with court papers. They also engage in rampant “robo-signing” — mass-producing fraudulent documents that they then submit to the courts. Debt buyers — companies that buy old, charged-off debts for pennies on the dollar — file more than half of all debt collection lawsuits in New York, and systematically lie to the courts about key information that they do not in fact have.

Creditors and debt buyers engage in this fraud to obtain automatic, or “default,” court judgments, which they then use to freeze people’s bank accounts or garnish their wages. The judgments also appear on people’s credit reports, blocking them from housing, employment, and credit access. Consequences have been especially dire for low-wage workers, elderly and disabled New Yorkers on fixed incomes, single mothers, and domestic violence survivors — and now also New Yorkers affected by last year’s hurricane.

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4th Amendment reminder

June 7, 2013 | By | 1 Reply More
4th Amendment reminder

Congress insists that the massive, invasive, unprecedented spying that they have authorized the government to perform is legal and necessary to stop terrorists. I didn’t notice any exceptions written into the Bill of Rights that nullify the rights in cases of terrorism . . .

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