Court releases Obama's drone memo

Thanks to the 2nd Circuit Court of Appeals, the infamous Obama administration "drone memo" is now public. The memo lays out the administration's justification for the use of drones to kill suspected terrorists and those unfortunate enough to be in the vicinity of them.

One of the touchstones of the memo is the infamous balancing test the US Supreme Court introduced when weighing Fourth Amendment violations. Never mind that the Fourth Amendment is quite clear in its prohibition against unreasonable search and seizures. As legendary criminal defense attorney Gerry Goldberg would point out, whenever the Supreme Court starts talking about balancing tests, our rights are in danger.

According to the memo we should look to balance the violation of a suspect's Fourth Amendment rights against the interest the government has in violating those rights. In other words, if there was enough dope found, the search is legal and if the government stomps its feet loud enough and proclaims that a person is a terrorist, then it's no harm, no foul.

Balancing tests are what we use to decide whether or not a law should be enforced or repealed. Balancing tests are what we use to decide our course of action in almost any endeavor. A balancing test has no business being involved in determining whether a person's constitutional rights were violated. To do so implies that one's rights under the Bill of Rights are just relative.

But, hey, if we're talking about the Fourth Amendment we already know we're talking about someone who did something they weren't supposed to. We also know that the police found plenty of evidence of that transgression -- otherwise there wouldn't be a need to discuss whether the search or seizure violated anyone's rights.

And who wants to be the person who lets the bad guy go free, anyway? That's certainly not the way to pick up votes during the campaign. Folks want to vote for the judges who are "tough on crime," not the judges who promise to extend the protections of the Bill of Rights to everyone who sets foot in their courtrooms.

And what better way to be tough on crime - or any other bogeyman - than to limit the applicability of the Fourth Amendment? And the best way to do it is to create a straw man and institute a balancing test. Of course the same folks who take that approach with the Fourth Amendment would have a conniption fit if anyone suggested that a balancing test should be used to determine when the Second Amendment should apply.

Principled grandstanding

Sen. James Risch (R-Idaho) was on All Things Considered yesterday talking about the threat that 13 senators have made to filibuster any attempt to put gun control legislation up for a vote. Sen. Risch said he is adamantly opposed to any legislation that might infringe upon the right of the citizenry to keep and bear arms.

It is heartwarming to see our legislators so concerned about the protections afforded up in the Bill of Rights. Can you even begin to imagine the impact such a demonstration would have on the Fourth Amendment? What a sight it would be to see a group of senators doing everything in their power to protect the constitutional rights of the accused? 

Such a force could even be powerful enough to persuade the Supreme Court that the Fourth Amendment means what it says and that further efforts to stretch the meanings of words aren't acceptable. Even the nine wearing robes stick their fingers up to see which way the wind is blowing every once in a while, you know.

And imagine what they could do to make the promise of Gideon a reality. 

Oh, what the hell am I thinking? They don't give a rat's ass about the rights of anyone who doesn't pump wads of cash into their campaigns. Their concern over the Second Amendment is grandstanding - they haven't the slightest care in the world about the Fourth, Fifth and Sixth Amendments. 

If these senators would take the same position on any legislation that infringed upon the constitutional rights of the citizenry I would give them a thumbs up for their principled stands. That would, of course, assume that they are capable of taking a principled stand on any issue.

It speaks volumes about the state of our politics that folks are more concerned about the possibility it may be harder to buy a gun in the future than they are about the steady erosion of their privacy rights by judges who are more concerned about putting the bad guy away than they are about ensuring the government doesn't overstep its bounds.

Where there's smoke, there's a microphone

The fix was in from the beginning. You know it. I know it. We all know it but the government is deadset on proceeding with a show trial in the best traditions of the Soviet Union and China.

Khalid Shaikh Mohammed and the other accused ringleaders of the 9/11 attacks don't stand a chance. The deck is stacked against them. Military tribunal. Evidence of torture is inadmissible (what a delightful irony). Defense attorneys forced to sign agreements not to disclose certain information. They might as well have signed an agreement to defend their clients with one arm tied behind their backs and a gag in their mouths.

We've already heard that a government agency is listening to the court proceedings and hitting the silence button whenever someone brings up something embarrassing that the government insists is confidential. But even that is not enough.

The latest allegations have to do with smoke detectors in the huts where attorneys visited with their clients that weren't really smoke detectors. They were listening devices.

The government has assured the court that these devices weren't being used to eavesdrop on attorney-client conversations in the huts. And, well, if the government says they didn't do anything wrong, who are we to disbelieve them?

And then there's that little matter involving the opening of legal mail coming into Guantanamo. Back in 2011, because there was some alleged contraband coming into the base, government officers opened all mail delivered to the detainees - including mail from their lawyers. Once again, government officials insist that the mail was just opened to make sure there was no contraband present and that no one ever looked at the contents of the letters. Now doesn't that just make you feel so much better?

These trials should have been conducted in public courtrooms in the United States. The government should have been held to its burden of proof and not have been allowed to hide behind the curtain of "classified information." Any information obtained through the use of torture should have been deemed inadmissible. Admissions that the huts in which defendants met with their attorneys and admissions that legal mail was opened should have led a judge to dismiss the prosecutions.

While these men may be viewed as the ultimate embodiment of evil by some, they still deserve a fair trial. In fact, they deserve a "fairer" trial because of how unpopular they are. You see, it's really easy for folks to turn a blind eye to the excesses of the government when the defendant is unpopular or accused of a truly heinous act. And once we have agreed that he is not as deserving of a fair trial as someone else, it becomes easier for the government to do the same to someone else.

See also:

"The (show) trial of the century," The Defense Rests (12/14/2012)

"Judge, jury and executioner," The Defense Rests (8/8/2012)

"Let the show trial begin," The Defense Rests (5/7/2012)

Worth the paper it's printed on

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. -- 2nd Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- 4th Amendment

For the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.

We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)

The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.

And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.

Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.

If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.

The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.

Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.

Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions. 

Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.

Judge, jury and executioner

The Obama administration's assault on the Bill of Rights - and the Constitution - continued yesterday when the government conceded to a federal judge that it was limiting the access defense attorneys had to their clients being held at Guantanamo Bay. The government told the judge that military and intelligence officials would have control over who had access to the detainees. Furthermore, the government told a judge that since the detainees were being held at a military base, the executive branch would hold the key to the jail, not the judiciary.

According to Lyle Denniston in yesterday's SCOTUSblog:

Since the Supreme Court’s 2008 decision in Boumediene v. Bush,  guaranteeing Guantanamo prisoners a right to go to court to test their detention, the issue of lawyers’ access has been within the control of federal District judges in Washington.  Under the new regime that began to be unveiled this summer, the Administration intends to shift that process entirely to the military and government intelligence agencies. The commander of the Naval base at Guantanamo is to gain full veto power, beyond review, over the access question, and the intelligence agencies would have the final veto power over access to classified information — even if that information comes from the detainees themselves. 

If this is upheld by Chief Judge Royce C. Lamberth after his review, lawyers for detainees will have to agree to the new limits as a condition for any access to their clients or to classified data.  So far, some of the lawyers have agreed, but others are resisting, and are asking Judge Lamberth to keep control over the issue within the District Court under orders that have been in effect for the past four years. 

The new regime is designed, Monday’s new government filing made clear, to give the military firm new control over the military base that is located on the island of Cuba.  The new document repeatedly stressed the military character of Guantanamo, and said its day-to-day functioning must remain within Executive Branch control.  There are now 168 detainees in the military prison there, most of whom are not facing prosecution for any crime. Also held there, though, are what the government calls “high-value detainees,” including the five individuals who are facing military commission trials for planning the terrorist attacks of September 11, 2001.

So there you have it. Our government has been holding these men for years without being charged and without any meaningful contact with an attorney. All in the name of keeping us safe.

Everything our government does to limit, restrict and infringe upon our fundamental rights is preceded either by "it's a dangerous world" and "the need for security." Yet every time no stands up to the government to challenge its decree, those things that make us unique are slowly ground into dust.

And if this is what a supposedly liberal administration is willing to do, just imagine what a law-and-order loving conservative (reactionary?) administration would do. Never forget that the right's calls for limited government only refer to the ability of the government to tax the rich, regulate the corporations and provide a safety net. The right has never had an issue with increasing the government's power to intrude upon the private lives of its citizens or residents.

When President Obama took the oath of office on January 20, 2009, he promised to defend the Constitution and to uphold the laws of the Untied States. His record, however, when it comes to Guantanamo Bay, detainees, secret foreign prisons, torture and the murder of suspected terrorists is nothing short of shameful.

How is he going to answer his daughters when they asked him why he authorized our government to torture suspected terrorists in secret prisons around the world? How is he going to answer his daughters when they ask him about his decisions to kill American citizens without affording them the right to due process? How is he going to answer his daughters when they ask him about how he ignored the Constitution and Bill of Rights?

Another assault on privacy

It's just never enough. No matter how much data the US government can collect on citizens, there is always more data just out of reach.

Last week the European Parliament voted to pass a bill allowing the US Department of Homeland Security to have access to the Passenger Name Records of any airline either operating out of the 27 countries of the European Union or any other airline incorporated or "storing data" in the EU.

And, no, you shouldn't need to ask why los federales need such information. It's the latest salvo in the war on the right to be left alone terrorism. Apologists for the overreaching arms of the state will point out that such information allowed the United States to catch various baddies over the years.

And now ordinary folks from across the pond will be giving up some of their personal data to Big Brother for the privilege of coming to America.

Some MEPs say the proposals leave too many unanswered questions, such as how will the US use this information, how long will it keep the data and who will have access to it? 

Dutch Liberal-Democrat MEP Sophie in 't Veld was involved in drafting the proposals but voted against the bill. 

"The results of the vote show clearly that there are very strong reservations against this agreement. However, the US made it very clear that a 'no' vote would be answered by suspending visa-free travel to the US," she said. 

"Many colleagues - understandably - did not want to make this sacrifice. But it is highly regrettable that the fundamental rights of EU citizens have been bargained away under pressure."

And why did the EU prostrate itself before the United States and agree to give up personal data on their citizens? Because of threats by the United States to suspend visa-free travel from Europe. Oh, the things our representatives are willing to cede on our behalf for the convenience of others.

Somewhere along the way in this war on the Bill of Rights terrorism, the government has forgotten one very important proposition. The proposition that we are all innocent unless proven guilty. Slowly, but surely, our basic right to be left alone by the state has eroded - and continues to erode because few people are willing to stand up and do anything about it.

Most folks will stand in that line at the airport and grumble about having to take off their shoes or pass through a full body scanner or have to suffer the humiliation of a scope and grope and just complain. Well, I guess that's just the price we pay for safety, they say.

This isn't about safety. It's about the unencumbered intrusion of the federal government into our private lives. It has to stop or else one day you will wake up and wonder where your right to privacy went.

Everyone is presumed innocent, except for...

If there was ever any doubt that the Attorney General is just the mouthpiece for the President of the United States, those doubts should be erased after Eric Holder bent over backwards to defend the summary killings of Americans abroad at a speech on Monday at Northwestern.

"The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen." -- US Attorney General Eric Holder

You see, Mr. Holder, we have this thing called the Bill of Rights that's supposed to serve to limit the power of the state to interfere with our lives and the lives of our fellow Americans. We have this concept that an individual, no matter what he's charged with, is innocent unless proven guilty beyond a reasonable doubt in a court of law.

People walk away from courthouses not guilty every day of the week. And, as we all know, in some cases they  got away with it. But that's the price we pay in this country for limiting the power of the government to take away a man's freedom - or his life.

"They are claiming the authority to kill any American citizen whom the president deems to be an enemy of the state and that authority is not reviewable before the fact by any court and it's not reviewed after the fact by any court." - Jameel Jaffer, ACLU

We see the stories on a regular basis of men who have spent decades in prison - some of them on death row - before being exonerated. It's a dirty little secret that the state sometimes gets it wrong - way wrong.

Maybe Anwar al-Awlaki was working with the enemies of the United States. Maybe he was aligned with terrorists. But, even if he was, Mr. al-Awlaki was an American citizen and he enjoyed (at least he thought he enjoyed) the rights afforded us under the Bill of Rights.

He had the right to be presumed innocent. He had the right to be informed of the charges against him. He had the right to confront his accusers. He had the right to have a jury decide his fate.

"Killing persons far from armed conflict zones must follow law enforcement rules to comply with fundamental human rights. The president cannot assert that the U.S. is in a worldwide war or use the interstate right of self-defense to do an end run around law enforcement principles." - Mary Ellen O'Connell, Notre Dame School of Law

But not according to President Obama and his lackey, Eric Holder. They can genuflect all they want but it doesn't change the fact that they violated Mr. al-Awlaki's constitutional rights. He was not afforded due process. There was no indictment. There was no public trial. There was no jury to decide his fate.

Nope. President Obama decided that the Constitution didn't apply to Mr. al-Awlaki because he didn't agree with what Mr. al-Awlaki had to say.

And then the administration wants to have it both ways when it comes to publicizing the death list. When President Obama feels that it helps his poll numbers, we get a speech from someone in the administration about the process; but, if someone sues over the summary killing of an American, it all becomes a state secret.

According to Mr. Holder, the president's authority to order the summary execution of Americans overseas comes courtesy of Congress and their authorization to use "necessary and appropriate force... to protect the nation from any imminent threat of violent attack."

And then he goes on to add that the US is up against a stateless enemy and so he has the authority to order a summary execution of any American anywhere in the world who poses "an imminent threat." So much for limited government. And so much for upholding the oath Mr. Holder took when he was sworn in as an attorney.

Mr. Holder's speech at Northwestern University was supposed to be followed by a question-and-answer session, but after realizing that there was no way to square the program with the Constitution, Mr. Holder cancelled the Q&A lest he make a complete ass of himself trying to justify it.

Yeah, it's a dangerous world out there, but sometimes that's just the price we pay for freedom and liberty.

xxx

Bennett for Court of Criminal Appeals

If there was ever a place that needed a proponent of limited government it is the Texas Court of Criminal Appeals. In no other area is the need to limit the power of the government quite as profound.

The government has the power to take away a man's life - either by force or by time. It is the most frightening power imaginable and it is that power that must be limited. And the most effective way to limit that power is to enforce the right of the people to be left alone by the government.

That right, in turn, is protected by the Fourth, Fifth and Sixth Amendments. The courts have only been too happy to ignore the words in the Constitution and substitute their notion of judicial efficiency and economy in their place. In order to affirm lower court decisions, our appellate courts have looked for every possible way to justify actions of the state that violated the provisions of the Fourth, Fifth and Sixth Amendments.

Into the void must step a person who is willing to stand alone to defend those rights.

Mark Bennett is that person.

Mark can be abrasive. He can be snarky. He can be a tad bit arrogant. But he is also a man of conviction. He is a man who believes that the power of the government must be limited by enforcing our right to be left alone.

Mark Bennett is running for a seat on the Texas Court of Criminal Appeals as a Libertarian.

Now if you're happy with the current state of the criminal (in)justice system in Texas, Mark isn't your man. If you think it's okay for the Chief Judge to shut down the clerk's office to prevent a man's attorneys from filing a last minute pleading, then Mark isn't your guy. If you don't understand that when the state takes away the rights of those people, that they are taking away your rights, then Mark isn't for you.

But if you believe that right must trump expediency, then you need to get out and vote for Mark Bennett.

See also:

"Mark Bennett, Court of Criminal Appeals," Simple Justice (March 5, 2012)

On secret prisons and shredding the Constitution

It would appear that the CIA has been operating a secret prison in Bucharest since the days of the Shrub administration.

The prison was used to hold and torture people suspected of terrorism. After the discovery of the basement prison, both US and Romanian officials denied its existence.

Is this what we have become? The US is supposed to be a place where the rule of law is supreme. A place where the Constitution and the Bill of Rights sets limits on what the government can and cannot do. A place where all men are equally presumed innocent before a jury.

But, in the name of security, our government has subverted the Constitution and has declared that the needs of the state outweigh the rights of the individual. Secret prisons. Indefinite detention. Military tribunals.

Is nobody willing to stand up in defense of the Constitution?

The only purpose of having secret prisons is to deny suspects the rights afforded to all of us. You don't need an attorney - all you need is a towel over your head and a steady stream of water. So fucking what if the use of torture against prisoners is outlawed - who the hell knows anyone's there?

I'm fairly certain that a good chunk of the populace doesn't care. They're terrorists - who cares what happens to them. Far too many people buy into the national security state. Far too many people are willing to cede their civil liberties for the illusory promise that the government can keep us safe.

The existence of these secret prisons should bother you. Hell, it should infuriate you. Our government has taken what's left of the Bill of Rights and run it through the shredder. When our government authorizes the torture of an inmate or a detainee or a terrorism suspect (whatever words you wish to use), our government is authorizing the use of torture against you and against me.

Our democracy is only as strong as the laws that constrain the absolute power of the state. There is no check on that power when the government operates in secret. There is no check on that power when the existence of a prison is hidden and denied.

If you don't stand up and demand that our government respect the rule of law, then who's going to stand up when they come for you?

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Responding to the responders

What follows is a comment that was posted in response to my post on September 11. As is my policy, if someone is going to take the time to register or to sign their name to a comment, I will run it - provided it isn't spam. The author of this comment apparently didn't believe me and submitted it three times over the course of the day. I'm terribly sorry I didn't approve it sooner, but I was with my wife's family which was still mourning the loss of her father.

Using today of all days to (accurately) describe the choking out of our civil liberties is like picking the moment before climax to hand your husband a breath mint or to ask your wife how long it has been since she shaved her legs. Bad timing. Very bad timing. 

And why is it "bad timing?" The tragedy on 9/11 was used by those in power as a justification for their assault on the Bill of Rights. If I'm such a bad person for pointing that out, what does that say about George W. Bush and his cronies who launched their war on freedom on the backs of those who died in New York, Washington, DC and Pennsylvania?

"Patriotic hoo-hah?" Why is today more significant?

It was the moment in modern American history when the nation began to understand what the world is like for many other people. It was the moment when we lost our global sense of safety. We couldn't ward off this danger by not going out at night or carrying pepper spray or a firearm. It was always the reality, but it was when the perception "bubble" burst.

Ever since the first Persian Gulf war we have been subjected to propaganda that we must "support our troops" regardless of our feelings about their mission. I've never bought into that. The entire movement to "support our troops" was nothing more than a political ploy to brainwash the public into buying into the government's illegal war.

All of the contrived patriotic fervor associated with 9/11 is a tool to paint those that oppose the government's assault on our freedom as being anti-American. It is designed to foster a culture of blind acceptance of the sound bites spewed by politicians and those waging war on the Bill of Rights.

There were hours of unanswered calls to loved ones, not knowing if they were okay, incinerated, or gasping for breath as they were crushed to death under tons of rubble. We watched people jump to their death on television. 

No one deserves that. To say that the hundreds of first responders and civilians that died got their "comeuppance" in the same post that you say to pray for them is the same hypocritical double talk in which the government engages. More importantly, it is cruel.

I never said the police officers and firemen who rushed into the towers got their comeuppance. What I said was that a nation whose government had thrown its power around without regard to the consequences got a taste of the wanton destruction it had rained down on other parts of the world.

You do not know who has and who hasn't shed tears for the tragic loss of human life in other parts of the world. To state that no one has is a sad and inaccurate portrayal of the American people.

It might be a sad portrayal - but it is far from inaccurate. Just this past week we got to see the spectacle of people cheering the fact that under Rick Perry's watch, the State of Texas has murdered over 240 men and women -- and we know that at least one of them, Cameron Willingham, was innocent.

Not everyone has a law degree, the technical savvy to know how to blog, or even an understanding of today's technology. It is hard to understand the complexities of the socio-political status. Just because people are not as educated and well-read as you are does not mean their hearts do not ache for tragedies all over the world, even if they do not understand the role the U.S. has played in them.

Many of those same people have begun to understand the philosophy of "Live free or die" and are trying to figure out how to put it into action.

If that were true we wouldn't have people cheering on the government as it has emasculated the Fourth Amendment. If that were true the public never would have accepted what goes on in airports across this country. If that were true the citizens of the United States would have stood up and called for the release of the detainees in Guantanamo who were held for years without being charged with a crime. If that were true the people would be up in arms at the notion that those accused of being responsible for the attacks would be tried in military courts behind closed doors rather than in a public courtroom.

You and your family will not be pulled from your home tonight and tortured and killed for your anti-government post. (In other parts of the world you may be.) If you were, people would revolt. It is not as sophisticated as you wish people were--but it is in the American psyche that civil liberties are paramount.

How I wish that were so, but too many of our fellow Americans have decided that they would rather sacrifice their civil liberties, and the civil liberties of those around them, in exchange for an empty promise of security from the government.

Tomorrow, I will return to my typical criticism of my government and their policies. I will promote the importance of keeping government in check and fighting on every front to restore and preserve the unique liberties that Americans have. 

Today, I will remember and honor. I will remember the people on United 93 who facing their own deaths, diverted the plane away from the intended target. I will remember those that were lost and the survivors that were left behind. I will honor the men and women that selflessly ran into a crumbling nightmare.

Let us never forget that a young man is more likely to be beaten or killed by the police that he is to die in a terrorist attack. Let us not forget that the police have stood by and watched as people fighting for civil rights were murdered across the South. Don't forget that in Alabama, firefighters turned their hoses on women and children who were protesting peacefully.

The police have long been used as a tool of aggression against those seeking to challenge the "order" of society. 9/11 doesn't change that.

Look on the bright side. People who have/are dealing with the pain of that day, regardless of what it is for them, will be drinking today. They will get in their cars to drive home. They will be arrested.

It's good for business.

I will remain vigilant against all assaults on our civil liberties and freedom - regardless of what day it is.

Never forget (the hype)

We have a fascination for numbers and anniversaries in this nation of ours. Today is the tenth anniversary of the attacks on 9/11. Of course it would be impossible to forget with all the patriotic hoo-hah and frenzy around us. But what makes today any more significant than yesterday - or tomorrow?

In time I'm sure stores will promote Patriot Day sales where you can get an additional 15% off that appliance purchase.

The real legacy of 9/11 isn't the lives lost that day, however. The real legacy is the shredding of the Bill of Rights that has continued unabated through today. The PATRIOT Act. Expanded wiretapping authority. Holding detainees indefinitely without charges. Torture. Metal detectors at municipal and small town courthouses. Scope and grope.

We, the people, have gladly acceded to the demands of the government to give up our freedoms in exchange for some nebulous concept called security. Let's be real for a second, those who wish to do harm to others have always found, and will always find, a way to carry out their acts. We don't live in a bubble.

My freedom is more important to me than worrying about that tiny chance that something bad is going to happen. The world didn't suddenly become more dangerous on September 12, 2001. The world has always been a dangerous place. What happened on that day is the great superpower that threw its weight around all over the world got its comeuppance.

Our government has been responsible for thousands of deaths around the world through our policies and warmongering. No one shed a tear for the innocents who were murdered in Korea, Vietnam, Central America or the Middle East when it was our soldiers or allies doing the killing.

So say a prayer for the men and women who died that day. Remember the sacrifice the police officers and firefighters who rushed into the buildings made. But don't forget the assault on our personal liberties that was "justified" by the events of that day.

More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

Looking for the next bogeyman

Yesterday's bogeyman is dead.

Today Scott Greenfield asks whether the death of Osama Bin Laden will change anything. Now that the mastermind of the 9/11 attacks is lying at the bottom of the sea, will the apparatus of the security state be dismantled?

Will the Patriot Act be repealed? Will the government cease efforts to do away with the Great Writ? Will the concentration camp prison at Guantanamo Bay be closed? Will the metal detectors at small town courthouses across the country be dismantled? Will los federales stop trying to force cellphone providers to give the state backdoor access to our communications? Will the airport gropers be forced to look for other employment? Will we finally stop flushing money down the toilet building more and more tools of death for the military? Will our young people be brought home from the Middle East?

I doubt it.

Already the government is warning us that the world might be a more dangerous place because of the death of Osama Bin Laden.

That's what the security state needs -- an enemy. Knock one down and put another in its place. After all, the government must justify the permanence of every "temporary" security measure.

The world is a dangerous place. It was a dangerous place before 9/11. It will be a dangerous place long after I'm dead and gone.

The goal of the security state is to do away with those pesky little protections afforded to us under the Bill of Rights. We can't allow the death of one bogeyman to get in the way of the eradication of our civil liberties. There will always be another threat just around the corner. And, because of that threat, the apparatus of the security state must remain in place. In fact, I'm certain that someone will stand up and call for more draconian security measures in the wake of Osama Bin Laden's death.

Where are those advocates for limited government when you need them?

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

And the lemmings keep falling off the cliff

Here's your tax dollars at work. If a stranger did this to your child, you'd be calling the police. But, because it's our government making a mockery of the Bill of Rights keeping us safe from 6 year-olds terrorists, it's okay.

From the Houston Chronicle:

In a statement, the Transportation Security Administration says the officer followed proper procedure but that the agency is reviewing its screening policies for “low-risk populations, such as young passengers.” The statement says the agency is exploring ways to “move beyond a one-size fits all system.”

Enough said.

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.

A glimpse into the future?

If you want an idea of what a post-apocalyptical United States might look like, the kind folks with the New York State Unified Court System and the New York State Bar Association have presented a preview of how they envision New York operating under such conditions.

The New York State Public Health Legal Manual lays out the plans on how the courts and legal system will operate in New York should the area be devastated by biological or conventional attack. As a preview, if you think the courts have made a joke out of the Fourth Amendment to date, you ain't seen nothing yet.

The privacy expectations involved in an administrative search of a residence are extremely high.  See United States v. United States District Court, 407 U.S. 297, 313 (1972) [“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”].By contrast, privacy expectations in commercial premises are “particularly attenuated” in industries that are “closely regulated.”  New York v. Burger, 482 U.S. 691, 700 (1987). Nevertheless, administrative searches of a home can fall within the “special needs exception” to the requirement of obtaining a warrant pursuant to a showing of probable cause—”where special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Board of Education v. Earls, 536 U.S. 822, 829 (2002), citing Griffen v. Wisconsin,483 U.S. 868, 873 (1987).

When it comes to allowing the government entre to your house and property, New York has it covered.

In the context of control of contagious diseases or other health hazards, facts supporting the seriousness of the threat and the need for immediate government action can justify a warrantless search. See Camara v. Municipal Court, supra, 387 U.S. at 539 [“nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations”], citing  North American Cold Storage v. City of Chicago, 211 U.S. 306 (1908) [seizure of contaminated food]; Jacobson v. Massachusetts, 197 U.S. 11 (1905) [mandatory smallpox vaccination];  Compaignie Francaise v. Louisiana State Board of Health, 186 U.S. 380 (1902) [health quarantine].

The idea is that given an outbreak of an infectious disease, agents of the government should be able to conduct an "administrative search" of your residence. If it's okay in the event of a biological attack, it isn't a giant leap to say it's okay in the event of war on American soil. Is it so hard to imagine the police conducting administrative searches in the name of "national security" in an attempt to round up anyone who disagrees with those in power?

And what if the government decides they need to take your property to "serve the greater good?" Forget about your day in court -- at least until some undetermined time in the future after the threat has passed.

The Fourteenth Amendment prohibits deprivation of property without due process of law. A pre-deprivation hearing is rarely feasible in an administrative search and seizure context where property is seized incidental to a search, especially a warrantless search based upon exigent needs; procedural due process then  must be satisfied by a meaningful post-deprivation remedy. See Gilbert v. Horn, 520 U.S. 924, 930 (1997) [“where a State must act quickly or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requisites of the Due Process Clause”]; Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 299-301 (1981) [no prior hearing is necessary when a seizure responds to a situation in which swift government action is necessary to protect  the public health and safety]. The availability of judicial actions for damages or replevin should satisfy the post-deprivation remedy requirement (and may do so even in non-emergency situations). See Hudson v. Palmer, 468 U.S. 517 (1984) [common law suit for damages sufficient post-deprivation remedy]; Parratt v. Taylor, 451 U.S. 527, 541 (1981) [same]; Smith v. O’Connor, 901 F. Supp. 644, 647 (S.D.N.Y. 1995) [meaningful post-deprivation hearings in action for damages, negligence, replevin or conversion are sufficient]; Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) [“An Article 78 proceeding is a perfectly adequate post-deprivation remedy.”].

It's just a damn shame that pesky little 14th Amendment even has to rear its ugly head, ain't it?

After letting us know that whenever the government seizes someone's property, that someone needs to be compensated (without nearly as much profit margin as those with inside information receive when they buy up land cheaply without disclosing the pending government seizure) -- but that whole compensation thing can really tie the government's hands when they're out there doing there best to deprive the population of their constitutional rights and protections. So the good folks up in New York found a solution to that little problem.

It turns out that if your property is seized because the government thinks it's a breeding ground for whatever infectious agent is terrorizing the area, your property hasn't been seized -- because it's not even yours.

These principles, however, do not apply where the seizure of property is to address public health hazards related to the property. There is no deprivation of property rights in that context, because the ownership of property carries with it a limitation that “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.”  Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029. All property is held under the implied obligation that the owner’s use of it is not injurious to the community.  Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 491-92 (1987). The state is not required to provide compensation for the seizure of property “to abate nuisances that affect the public generally,” Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029, or “for the destruction of ‘real and personal property, in cases of actual necessity, to prevent the spreading of  a fire’ or to forestall other grave threats to the lives and property of others.” Id. at n.16, citing Bowditch v. Boston, 101 U.S. 16, 18-19 (1880). As  the Supreme Court has stated, “[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not taken anything when it asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous Coal Association v. DeBenedictis, supra, 480 U.S. at 491, n.20. Cf. PHL § 1306(1) [“The expense of suppression or removal of a nuisance or conditions detrimental to health shall be paid by the owner or occupant of the premises . . . .”].

That's right. It's not even your property - despite what the title says and despite the fact the person who sold you the property warranted that the property was his. I don't recall anything in the paperwork when my wife and I bought our house that said there was an implied obligation that our use of the property not injure anyone else. There may very well be a legal obligation should a neighbor file suit because your allowing a heavy metal band to perform at midnight every night infringes upon their quiet enjoyment of their property - but that's a different beast than the government taking your property because of an alleged public health matter.

It would appear that some folks have forgotten that the Bill of Rights was drafted with the specific intent of limiting the power of government to meddle in people's lives. So what if the 14th Amendment requires that a property owner be afforded due process before the government can seize his property -- the government exists to serve us, not the other way around. People are real. The land is real. The state is an artificial creation.

And what plan by the bar would be complete without some provision for how legal proceedings will be carried out? What if, shall we say, someone brought before the court has an infectious disease?

Where the presence of a participant who has a contagious disease occurs, and the court determines that the hearing of the case cannot be postponed, protocols are currently in place for addressing the health threat. Where the disease is transmitted by a blood-borne pathogen, court personnel may wear protective gloves; where the disease is transmitted by an air-borne pathogen, court personnel may wear respirators. This equipment is already available at many courthouses. However, the wearing of respirators by the multiple participants in a courtroom setting would  no doubt be disruptive to the proceeding, and courts may have  to explore alternatives, such as requiring the infectious person to wear the respirator or isolating an infectious litigant in a separate room with an audio-visual connection to the courtroom.  Cf.  Illinois v. Allen, 397 U.S. 337, 342-43 (1970) [the right to be present at trial is not violated where a trial judge removed a criminal defendant from the courtroom for disruptive behavior].

Confronting your accusers? Whoever heard of such a ridiculous notion? Let's just toss the poor fool in another room, isolated from his attorney and from the court proceedings themselves. There's no need for him to be able to communicate with his lawyer, there's no need for him to be able to see the folks testifying against him in the flesh.

The New York plan is clear in its goal -- in the event of a disaster, the state shall survive. We don't know about the people, however.