Warriors for a new tomorrow

No, that's not an armed invasion of the City of Houston. It's just the latest example of the increasing militarization of the police. There is no reason a Houston police officer should be decked out in full camouflage. He's not a soldier, he is a peace officer.

The mission of a police department is to protect and serve the citizenry. It's not to dress up like a soldier and carry an automatic rifle. It's not to get behind the wheel of an armored personnel carrier. These devices and artifices serve only to separate the police more and more from the rest of us.

As I drove around the city this morning listening to the Diane Rehm show. She and her guests were discussing the latest alleged (unspecified) terrorist plot. As usual, none of Ms. Rehm's guests were from outside the mainstream of opinion. The guests might tilt a little bit to the left or right but there is never anyone on the air who would argue that the questions missed the point.

While we have seen this same scenario played out many times before, not one guest on the show cast any skepticism about the veracity of the government's claims that they had uncovered information from listening to phone calls about the alleged plot. The very notion that the Obama administration would create an alleged terror threat out of whole cloth to distract attention from the NSA's internal surveillance programs was ridiculed by Ms. Rehm and her guests.

But most disturbing was the idea that, in a digital world, we need to come to the realization that the government is going to listen in to our phone calls, read our e-mails and peruse our internet searches. Not one guest questioned the premise that our privacy rights and civil liberties need to suffer in order for Big Brother to protect us.

If you follow their logic, the Fourth Amendment is but a quaint historical relic treasured by those of us who refuse to accept the new reality.

As an aside, none of the guests questioned the right of the United States to fly unmanned drones through the air space of a sovereign nation and fire missiles at their citizens. I guess murder is murder, unless the victim speaks a different language and practices a different set of superstitious rituals - but that's an argument for another day.

And as I listened to the conversation my mind kept being drawn back to the picture of HPD officers dressed in full camouflage carrying automatic rifles walking down a city street. Somewhere along the way we got so far off-track that most of us don't even think twice about the implications of turning the police into a paramilitary squad.

Taking aim at the Occupy movement

An identified _____ as of October [2011] planned to engage in sniper attacks against protesters in Houston, Texas, if deemed necessary. An identified _____ had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio and Austin, Texas. _____ planned to gather intelligence against the leaders of the protest groups and obtain photographs, then formulate a plan to kill the leadership via suppressed sniper rifles.\

*     *     *     

On 13 October 2011, writer sent via email an excerpt from the daily _____ regarding FBI Houston's _____ to all IAs, SSRAs and SSA _____. This _____ identified the exploitation of the Occupy Movement by _____ interested in developing a long-term plan to kill local Occupy leaders via sniper fire.

Those are excerpts from documents obtained by Dave Lindorff through a FOIA request to the FBI regarding the Occupy movement. This is how seriously someone took the Occupy movement given the economic conditions and events happening around the world in 2011.

Through my work with the National Lawyers Guild I represented members of Occupy Houston, and their supporters, who were arrested during their "occupation" of downtown Houston. In the course of that representation a colleague, Greg Gladden, uncovered documents regarding the infiltration of the Occupy Austin movement by officers with the Austin Police Department. The documents also spelled out the involvement of the FBI and other law enforcement agencies.

Never during the course of our representation of the Occupy Houston protesters did we hear anything about a plot to kill the leadership of the Occupy movement in Houston. If the information contained within these documents is true, it raises some very serious questions.

Just how scared of the Occupy movement was the government? Or, maybe the question should be just how scared were business leaders and their lackeys in the government? The Occupy protests were a mass movement that had the potential to catch fire. That they didn't is due to the government's crackdowns and, I would argue, on the lack of a cohesive message from the movement.

The more important question is, obviously, who was behind the alleged plot to assassinate Occupy leaders in Houston? Why did the government redact any identification information about whose plot it was? Is that information redacted because it would expose confidential sources, or is it redacted because the FBI was behind the alleged plot?

I must admit that I have a very hard time believing that the assassination plot was a government-hatched plan. The more effective tactics in shutting down the movement were either driving the protesters out of the parks or waiting them out. Sending in snipers to kill protesters seems like a massive overreaction.

Of course maybe the FBI had infiltrated right-wing groups opposed to the Occupy movement and were running an undercover operation to put the groups out of business. If that were the case, how much of this alleged plot was cooked up by group members and how much of the idea was planted in their heads by undercover agents?

Whatever the answers to the questions may be, we know that something was up. We know that the Houston FBI knew about the plot and that they provided no warning to the Occupy protesters in Tranquility Park.

We also know that the FBI characterized the Occupy movement as a terrorist organization - apparently because the participants dared to question the status quo and the government's role in the economic collapse.  For those of y'all who are okay with our government's domestic surveillance programs under the belief that the programs are keeping us safe, just take a moment to think about how low the bar is for the government to label a group as being a terrorist organization.

See also:

"FBI Document - "[DELETED]" plots to kill Occupy leaders "If Deemed Necessary," by David Lindorff, WhoWhatWhy (June 27, 2013)

-- Please note that Mr. Lindorff's story is inaccurate with regard to my role in the defense of the Occupy the Port protesters who were charged with felony offenses. I represented one protester charged with a misdemeanor arising out of that protest. --

  FBI Docs Referencing Sniper Murder Plot

Hanging on the telephone (metadata records)

It all started out innocently enough. A woman was robbed. She remembered the car the robber was driving. She started receiving threatening and obscene phone calls from a man who claimed to have robbed her. One night the man told her to go outside and she saw the same car she saw on the day she was robbed driving down her street. The police ran the license plate number and learned the identity of the driver.

She called the police to report the phone calls. The police, in turn, went to the phone company and asked them to install a pen register on the phone line of the man who owned the car in question. The pen register (a device that allowed the phone company to record the telephone numbers dialed from the phone line with the device), gave the police all they needed to connect the owner of the car to the phone calls and the robbery.

Now I shouldn't have to tell you what happened next. The owner of the car was arrested, charged with robbery and convicted. His motion to suppress the evidence obtained from the pen register was denied on the grounds there was no search. The conviction was upheld on appeal to Maryland's highest court.

Then the Supremes got hold of the case.

The Court held that the installation of the pen register didn't constitute a search because the defendant did not have a reasonable expectation of privacy as to the numbers he dialed from his phone. The Court also went to great lengths to explain that the contents of the phone calls weren't recorded, only the numbers dialed from the defendant's phone.

Fast forward to earlier this week and we find out that Verizon, among other providers, has been providing so-called meta data from phone calls on its network in response to an order issued by a secret court (Foreign Intelligence Surveillance Court). The government has been quick to point out that the only information obtained were the phone numbers dialed, the duration of the conversation, the location of the callers and the length of the call.

• Click here to read the secret court's order for yourself.

What's the problem los federales ask. We're just keeping tabs on who you're calling and how long y'all are talking for.

Of course, once confronted with the news that the government is spying on its own citizens, the director of national intelligence doesn't even waste his time with the time-honored non-apology apology. Nope, instead he goes straight for the blame the leaker card.

James Clapper, the director of National Intelligence, has released a statement, which, in part, says: "The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans."

Just because the Supreme Court got it wrong in Smith v. Maryland doesn't mean we have to follow that precedent. Yes, all of the information regarding who we call, how long we talk and where we are when talking may be found somewhere in the mammoth stack of data the phone of cell company maintains. In our increasingly connected world, such metadata has to be stored someplace, but just because it's stored in a server in the back room of the cellular provider doesn't mean the users of that service don't have a reasonable expectation of privacy as to whom they call and how long they talk.

These cases involving electronic privacy all start with the same incorrect premise that it is the state that determines what is private and what is not. In other words, if you follow the logic of the government in these cases you will come to the inexorable conclusion that, in the eyes of the state, nothing is private unless the government says it is.

Somewhere along the line we have forgotten that it is the people who are the sovereign in the United States. The Preamble to the U.S. Constitution begins with "We the people." Our government only has those powers that the people have ceded to it. The very notion that we only have a privacy interest in anything in which we have a reasonable expectation of privacy is badly flawed.

The truth is we have a privacy interest in everything that we do and anytime the government intrudes upon that privacy interest there is a search. The burden should not be on the individual to prove that he or she had a reasonable expectation of privacy, the burden should be on the state to prove that its intrusion into the privacy of an individual was not unreasonable.

This latest example of what the government has been doing since the 9/11 hysteria demonstrates that, not only, do bad facts make bad law, but that bad law perpetuates itself through the doctrine of stare decisis.

Spying on the 99 percent

Congress shall make no law... abridging the freedom of speech... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. -- 1st Amendment

But just because the Bill of Rights says you can air your grievances, it doesn't mean the government has to just sit there and take it. With a treasure trove of FBI documents obtained through a Freedom of Information request, the Partnership for Civil Justice Fund, has exposed the extent to which the FBI and law enforcement agencies around the country spied on the Occupy! movement.

The FBI and Department of Homeland Security treated the Occupy protesters as domestic terrorists as they mobilized agents for the benefit of big banks and Wall Street. The FBI was particularly concerned about protests on the West Coast that targeted major ports.

Those concerns manifested themselves in Texas where members of an Austin Police Department task force infiltrated the Occupy Austin group and helped produce the so-called "sleeping dragons" used by protesters at the Port of Houston to prevent trucks from entering the port.

Documents obtained from the Austin Police Department paint a picture of a handful of officers who not only kept on eye on protesters but who became actively involved in the planning and carrying out of actions.

The question arises as to just why the FBI, Department of Homeland Security and local law enforcement agencies were so interested in the Occupy movement. These documents also raise questions as to what role the government should be playing in domestic surveillance operations.

Supposedly the role of of law enforcement is to serve the local community in making the community safe for its residents. These officers, after all, are employees of the local community and answer, in theory, to the members of the community.

In this case the federal government was busy handing out grants for local communities to create what have been referred to as "fusion centers" where members of various law enforcement agencies could get together and share intelligence on protesters.

Keep in mind that these protesters were upset about the growing gap between the very wealthy and the rest of us in this country. These young men and women were standing up and publicizing the fact that the financial crisis was caused by the major banks and Wall Street and that the primary "victims" were ordinary workers and homeowners. The Occupy movement was all about highlighting the fact that our government was busy handing out money hand over fist to the very folks who caused the problem while ignoring the plight of the ordinary folks caught in the middle.

But god only knows we can't have that debate in this country. We can spend all the time in the world arguing about abortion or whether President Obama has a valid birth certificate. But it's off limits to discuss the shortcomings of capitalism or alternative economic systems.

The same President Obama who was happy to let the world know he was a community organizer back in Chicago authorized the surveillance and infiltration of the Occupy movement.

And what does such an operation tell us about our government's priorities? Millions of people are unemployed - some for years - and others have lost their homes, yet we're going to spend our money on a massive domestic spying operation for the benefit of corporate America.

The Occupy protesters gathered to petition the government regarding their grievances. Their government responded by spying on them and sending in agent provocateurs to incite criminal activity that likely would never have happened otherwise.

Prying eyes in the desert

Had up to here with airport security, TSA, drones and government data-mining of phone calls and e-mail? Well, the latest device in the government's ongoing war against your right to be left alone are license plate recognition devices in the Arizona desert.

That's right. Clusters of cameras have been placed in the Arizona desert - in some cases quite far from the Mexican border. These clusters include both regular surveillance cameras as well as devices that read license plate numbers and send the data to a site in Virginia for storage. The device also records the date, time and location of the car tracked.

Of course the government claims this is the latest tool needed to fight the scourge of drugs. The information retrieved by the devices can then be shared with local, state and federal law enforcement agencies for whatever purpose they deem necessary.

The DEA has installed the devices in California, Arizona, New Mexico and Texas. Next up are plans for installing them further inland.

Writes, G.W. Schultz of the Center for Investigative Reporting:

In their unending battle to deter illegal immigration, drug trafficking and terrorism, U.S. authorities already have beefed up border security with drug-sniffing dogs, aircraft and thousands more agents manning interior checkpoints. 

Now, the U.S. Drug Enforcement Administration has decided it wants more, and the Justice Department agency doesn't care whether someone has even set foot in Mexico.

Need I go any further?

Bet you didn't know that just by driving down the highway in Arizona, minding your own business, you were under suspicion for illegal activity. The notion is absurd. I'm also surprised that Homeland Security didn't get involved in this and claim that the devices would cut down on terrorist activity in the Southwest.

Oh, no terrorist activity in the Arizona desert? Well, that's just a little detail we don't need to worry about at this time.

This country was founded on the principle that the people have a right to be left alone by the government. The Bill of Rights enshrines that doctrine. But with a judiciary that would rather kowtow to law enforcement than exercise sound judgment, our right to be left alone has withered away to the point of extinction.

The Fourth Amendment is on life support as the result of a thousand paper cuts over the years. Judges are more worried about outcome than they are principle. You know the drill - if the court were to uphold the words of the Fourth Amendment, the bad guys would get away; therefore we must make an exception to the rule in this case... and in that case... and in this other case. You do it enough, there is no doctrine left.

We have the right to be left alone. The police don't have the right to interfere with your daily routine unless they have reasonable suspicion (itself an example of the courts taking liberties with the Fourth Amendment) that you have engaged in some type of criminal activity. These devices in the desert are only the latest method the government has dreamed up to circumvent that basic notion.

Let me out!

What would J. Edgar Hoover say if he were alive today?

It appears that FBI agents, including supervisors, cheated on an open-book test covering the FBI's policies for conducting surveillance on citizens of the good ol' US of A. Agents worked together, used cheat sheets or took advantage of a software problem to answer questions regarding how agents can conduct investigations without treading on the rights of the citizenry (there's that damn Fourth Amendment again).

These are the people who run domestic surveillance on groups that espouse views that could be considered anti-government. These are the people who collect data and evidence to use against those the government deems to be terrorists.

If they can't be trusted to take a test, how can they be trusted to carry out investigations in which the rights of the citizenry are under attack? If they will lie when signing an oath that they took the test without anyone's assistance,  what's to stop them from lying on the stand?