Thomas Jefferson said that an informed citizenry is critical to a democracy, and with that as a cornerstone the Founders wrote freedom of the press into the First Amendment to the Constitution.
The most basic of ideas at play is that the government should in no way be allowed to control what information the press can report to the people, and cannot place restrictions on journalists. One of the principal characteristics of any fascist state is the control of information, and thus the press is always seen as a check on government power that needs to be stomped on. Ask any surviving journalist in North Korea, or Saudi Arabia.
And so it is with terror we learn the United States Secret Service, in the name of security, is for the first time in our Republic’s history running background checks on thousands of journalists who plan to report from this summer’s Republican and Democratic Party nominating conventions.
Journalists who don’t pass the security screening process, for which of course there are no publicly-stated criteria and which has no system of appeal, will be denied credentials to cover the GOP convention in Cleveland, and the Democrats’ in Philadelphia. As the Daily Beast writes, this is the government deciding who can and can’t be a journalist, and through that process, heavily influencing what will be reported. Happytime government stenographers from CNN? Step right in, sir. Investigative, real journalists from The Intercept? Um, maybe not. Will a journalist from an “un-American” news source such as The Daily Worker be denied simply based on affiliation?
Oh, the issues are many.
For example, security clearances are typically denied to persons with an arrest record. Will that also apply to journalists who have been arrested in protest situations while exercising one or more of their First Amendment rights? Drug use is also often a negative indicator for a security clearance, so does that mean a person busted for a loose joint in college may not report from inside the convention hall?
The Secret Service denies that a protest arrest will lead to a denial, though admits that arrests for assault, or domestic violence, charges could. At issue is that such arrests can cover a very broad spectrum of behavior, determined at a very local level. For example, imagine an African-American falsely charged with assault in some mean Texas backwater. Note also, as in most security clearance processes, the standard is an arrest, not necessarily a conviction.
Obtaining security clearances also involves the “voluntary” turning over of personal information to the government, to often include associations, employment history, professional affiliations, fingerprints, financials and the like. If a journalist wishes not to hand over that information to the Secret Service, does that automatically bar him/her from playing his mandated role of informing the public? Apparently it does.
There is also the question of control of all that personal information. The Secret Services states on its website that it has a contract with the Ardian Group, a private contractor, “to capture that Personally Identifiable Information for credentialing production” (though the Service itself makes the actual yes or no decision to allow access.)
In a widely distributed “Dear Colleagues” letter, John Stanton, Washington bureau chief of BuzzFeed, asked the capper question: “Should the Secret Service have jurisdiction over the First Amendment?”
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Evil is participatory, says interviewee David Harris at the beginning of a documentary in progress about Vietnam-era draft resisters, The Boys Who Said No!
Evil continuing depends on people joining in, and the first step to stopping it, he continues, is withdrawing your own participation. So Harris said no to the Vietnam-era draft, and went to jail for it.
The Boys Who Said No!
The Boys Who Said No! is set during the late 1960s and early 70s, when thousands resisted conscription at the risk of federal prison. Unlike those who evaded the draft by fleeing to Canada, getting various deferments, or resorting to violent protest, the subjects of this film chose civil disobedience.
It was a costly decision.
An estimated 500,000 young men evaded or refused to cooperate with the draft, and 3,250 went to prison for their beliefs, the largest mass incarceration of war resisters in U.S. history. The film tackles this broad narrative mostly through the story of David Harris (who spent three years in Federal prison for refusing to be drafted, and for encouraging others to do the same) and his wife, folksinger Joan Baez. Interviews with many other draft resisters round out the narrative.
As part of understanding the Vietnam era, the film also reviews the history of the draft, and opposition to previous drafts, and the Vietnam war. Resistance to the war is tied into the larger civil rights movement, two sides of the same coin in opposing unjust actions by the government, with the inclusion of the Reverend Martin Luther King, Jr. visiting Joan Baez and those jailed for blocking the Oakland Draft Board in 1967.
How Do You Say “Vietnam” in Arabic? Iraq
To a younger audience, the film is perhaps a bit funny, guys with weird hair and unhip clothing burning whatever draft cards were. For a cynical generation, it is as easy to dismiss the value of individual action as it is wrong to do so. Indeed, the actions of one person alone can amount to little. But as an interviewee says, you never know who’s watching. The Boys Who Said No! illustrates how one can become two, two can become ten, and over time they together remind you all that sand on the beach was once a rock.
The Boys Who Said No! thus resonates strongly today.
It offers an answer to the question of what courage is in a modern world: not only choosing the harder right over the easier wrong, but being willing to pay the price for acting on conscience, for a good bigger than oneself. And in that definition, the actions of men like David Harris and the thousands who joined him in refusing the draft, become clearer. The path they put themselves on leads in a straight line through whistleblowers Ellsberg (Pentagon Papers), Drake and Binney (NSA), Manning and Assange (Iraq War), Kiriakou and Sterling (CIA) and Snowden.
Acts of conscience never go out of fashion, and a country never has enough examples. That’s what makes a film like The Boys Who Said No! more than historical document.
To many today the war in Vietnam seems as old as the battles at Gettysburg and Antietam. But think about this: Vietnam was a war started on false pretenses (U.S. ships attacked in Gulf of Tonkin, Weapons of Mass Destruction in Iraq), built on deeply flawed fear (Communism will overtake Southeast Asia, a caliphate will engulf the Middle East), a faux-threat to the United States/Homeland (Communists on the beaches of California, Islamic terrorists in your town) and the strategy of extraordinary means spent for limited ends. Very, very similar comparisons apply to America’s war in Central America during the 1980s.
And before you dismiss that by saying the struggle against Islamic terror is “different,” remember this: history shows those who resisted the war in Vietnam, and that in Central America, turned out to be right.
The Boys Who Said No! is currently in production, but in need of additional funding for completion. Take a look at a 17 minute excerpt, and visit the project’s website, Facebook, or Indiegogo page if you wish to contribute.
A Bit More
The Boys Who Said No! was directed is Judith Ehrlich, who won an Academy Award nomination for The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. The producer is Christopher C. Jones, who at age 17 refused to register for the draft, was arrested and served nine months in federal prison. As the documentary is not complete, my comments above are based on previews and clips I have seen.
The film takes its title from a 1960s poster showing Joan Baez’ sisters sitting on a couch with the caption “Girls say yes to boys who say no.”
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The FBI is instructing high schools across the country to report students who criticize government policies as potential future terrorists, warning that such “extremists” are in the same category as ISIS.
The FBI’s Preventing Violent Extremism in Schools guidelines try to avoid the appearance of specific discrimination against Muslim students by targeting every American teenager who is politically outspoken, as if that somehow makes all this better. The FBI’s goal is to enlist every teacher and every student as informants. The concept is not dissimilar to attempts by the FBI to require tech companies such as Apple to become extensions of the FBI’s power. FYI, the FBI also now has full access to data collected on Americans by the NSA.
You really do need to scan through the FBI’s materials, which are aimed directly at our children; my words cannot describe the chilling 1984-tone purposely adopted.
As author Sarah Lazare points out, the FBI’s justification for such mass teenage surveillance is based on McCarthy-era theories of radicalization, in which authorities monitor thoughts and behaviors that they claim without any proof lead to acts of subversion, even if the people being watched have not committed any wrongdoing. This model is now (again, welcome back to the 1950s) official federal policy.
The FBI guidelines claim “High school students are ideal targets for recruitment by violent extremists seeking support for their radical ideologies, foreign fighter networks, or conducting acts of violence within our borders… youth possess inherent risk factors.” In light of this, the FBI instructs teachers to “incorporate a two-hour block of violent extremism awareness training” into the core curriculum for all youth in grades 9 through 12.
Here are the danger signs the FBI directs teachers keep a sharp eye out for:
— “Talking about traveling to places that sound suspicious”;
— “Using code words or unusual language”;
— “Using several different cell phones and private messaging apps”;
— “Studying or taking pictures of potential targets (like a government building);”
— “Some immigrant families may not be sufficiently present in a youth’s life due to work constraints to foster critical thinking”;
— “Encryption is often used to facilitate extremism discussions.”
And just to make sure the connection with McCarthyism and the red baiting days of the 1950s is clear enough, the FBI materials warn “Anarchist extremists believe that society should have no government, laws, or police, and they are loosely organized, with no central leadership. Violent anarchist extremists usually target symbols of capitalism they believe to be the cause of all problems in society — such as large corporations, government organizations, and police agencies.”
So, sorry, Bernie Sanders supporters.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Yep, you should care. Very much. Hang up the phone and listen.
What This is All About
The FBI wants Apple to help unlock an iPhone used by one of the attackers who killed 14 people in the December San Bernardino shooting. Specifically, the Bureau wants Apple to create new software that would override a security system on the phone designed to erase its contents after ten unsuccessful password tries. The new software would also eliminate the built-in pause required between tries.
The software on the San Bernardino shooter’s phone, after ten tries, will automatically destroy any data on it as a security measure. The FBI needs that ten try limit, plus the required pauses between tries, taken away so that they can run a “brute force” attack against the password. A brute force attack runs an unlimited number of passwords (a1, a2, a3… aa1, aa2, aa3…) at high speed against the system until one works.
Apple said no. The FBI took Apple to court, where it successfully argued an 1789 law that compelled cooperation with simple court orders applied to Apple’s encryption in 2016. Apple is appealing.
What This is Really All About
This is really all about encryption, and whether the U.S. government can force companies to bypass their own security systems on demand. It is about whether a tech company’s primary obligation is to provide secure products that protect the privacy of its customers (good and bad people), or to act as a tool of American law enforcement to strip away that privacy as the government requires.
The battle is actually even more significant. Since the Ed Snowden revelations exposed the NSA spying on persons worldwide, including inside the United States, the Federal government has been demanding a “back door” into commercial encryption systems.
Some simplified tech talk: encryption turns data from something that can be read into 23hd892k*&^43s. Two “keys” are needed; one to turn the data into unreadable text, and one to reverse the process. In the case of the iPhone, Apple holds the encrypting key, and the user the unencryption key, her password. A backdoor is a bit of computer code that would allow law enforcement to bypass that second key and read anyone’s data. That’s what the Feds want, as, per Snowden, some current, commercially available encryption may still be beyond the NSA’s ability to break, and some other encryption can only be broken slowly, with expensive computers.
What This is Really, Really All About
The fight isn’t over whether Apple can comply with the government’s request; technically it can. It’s whether it should.
Efforts to force companies to create that desired back door have proven unsuccessful. Many tech companies resent that the NSA hacked into their systems whenever possible up until the Snowden revelations, and others fear a consumer backlash if they cooperate too broadly. Congress so far has been unable to pass laws compelling the creation of back doors. The FBI is so desperate that they even deleted “safety” advice they once issued recommending people do encrypt their phones.
The San Bernardino shooter’s iPhone is seen by many as a test case.
The request is technologically doable, the shooter is dead, fully without privacy and cannot countersue, a search warrant for the phone exists, the phone is physically in the FBI’s possession on U.S. soil and the circumstances are very much PR-friendly — the guy was a terrorist, and who knows, maybe the phone holds clues to prevent some future attack. You really can’t do better than that.
Some 40% of Americans agree that Apple should unlock the phone. And just in case you still don’t get it, remember the government took the provocative step of asking the court to unseal the case, which would normally be secret by default.
Apple is pushing back.
The company filed a request to vacate response to the court order, claiming it violated the First and Fifth Amendments, and exceeded the powers granted to the government in the All Writs Act, that 1789 law. Facebook, Microsoft, Twitter and Google plan to file briefs supporting Apple’s position. Meanwhile, both the FBI and Apple want Congress to weigh in, and indeed the House Judiciary Committee will hold a hearing on encryption issues.
It is very likely the case will reach the Supreme Court.
The Broader Implications
The case the Supreme Court will almost certainly hear is not about a single phone, but about creating a legal precedent for the United States government to demand whatever cooperation it needs from private companies with stockholder obligations to bypass security and encryption as it wishes; FBI director Comey stated the case will “be instructive for other courts” when interpreting how far third parties have to go in helping the government hack their products.
In an op-ed, the New York Police Department Commissioner and his intelligence and counterterrorism chief admitted that what Apple has been asked to do will drive how the government demands tech companies provide access to secured devices in the future.
Why You Should Care
If Apple fails, the U.S. government will be able to read the contents of any electronic device in the U.S., regardless of encryption. The legal precedent will absolutely spill out past the iPhone to all other devices. For anyone who lives, travels or passes through America, this will touch you. In addition, phone, email and social media data passes through the U.S. from many parts of the world even if the users on both ends are outside the country.
In addition, what would Apple’s (Google’s, et al) response be to a request from your favorite bad government? What if China were to require it hold a backdoor key as a condition for sales in the Mainland? What if your favorite bad government overtly decided to use that backdoor to “legally” gather proprietary data from your company, against journalists and dissidents, or to amass blackmail information on a colleague?
A win for the government in the Apple case would also further stretch the applicability of the All Writs Act to ever more information inside the U.S., or held by companies with ties to the U.S. — medical records, for example.
For investors, will knowing the U.S. and your favorite bad government now have access to a device help or hinder sales (Apple has already claimed compliance will “tarnish the Apple brand”)?
And of course once backdoors exist, who, in the age of leaks (Snowden hacked the NSA itself), can assure that the knowledge will not end up your favorite set of wrong hands, say perhaps those Russian gangsters who are always sending you Spam emails?
Bottom Line: everyone has something they wish to keep to themselves. The Apple case will significantly affect how possible that will be going forward.
When we speak of the government’s ongoing assault against the First Amendment, it is typically in the context of Freedom of Speech. That is indeed primarily the focus, using the tools of The State to silence its critics. But not if you are a Muslim.
For many Muslims, the clause inside the First Amendment most often violated is that of Freedom of Religion. One of the latest battles in that war is playing out now in New York City.
Because the worst of the 9/11 attacks happened in New York, the city has always claimed a kind of de facto exemption from having to follow the rule of law. Under its former mayors, the NYPD actively conducted blanket surveillance of the Muslim community, to include sending undercover cops into mosques and Muslim social events for “intel.” Though no obvious terror attacks were identified or thwarted, the NYPD insisted the program was critical (see the same tired arguments expelled as “torture worked, though we won’t tell you how.”)
NY’s current mayor, Bill Blasio, promised in April of 2014 to dismantle the so-called NYPD Demographics Unit, which was responsible for singling out one religious group among all others, apparently based on the twisted post-9/11 logic of “Muslim –> Likely Terrorist –> Spy on all Muslims.”
However, despite the promise, the NYPD has continued its spying in violation of the First Amendment.
The most recent example was discovered when the website The Gothamist wrote about an NYPD undercover detective who converted to Islam to spy on students at a local college. The police admitted to the spying, but claimed it did not violate the First Amendment in that it was “targeted” and not “overarching blanket surveillance.” The undercover cop developed intimate ties with the students she met, even attending bridal showers and weddings. She also joined the school’s Islamic Society to gather information on Muslim students.
Glenn Katon, legal director for Muslim Advocates and a lead attorney in Hassan v. City of New York, which alleges that the NYPD engaged in a program of “blanket, suspicionless surveillance” that discriminated on the basis of religion, recently won a small victory when the Third Circuit court found that the Hassan plaintiffs had standing and raised valid constitutional concerns, and reversed the suit’s previous dismissal. The courts had previously in that dismissal required the plaintiffs to prove on an individual and personal basis that they had been surveilled, a difficult request given that while the NYPD admitted blanket surveilling the Muslim community, it would not confirm individual cases (see “Catch-22” in the dictionary.)
An attorney in another ongoing lawsuit against the NYPD, Handschu v. Special Services Division, stated that for a police officer to be placed undercover for as long as in the current case, there would have to be a terrorism enterprise investigation in place, which would require permission from the Commissioner of Intelligence and proof of an ongoing criminal conspiracy. No such terrorism enterprise or ongoing criminal conspiracy has even been alleged by the NYPD. They conducted the spying anyway based on the idea that terrorists are Muslims so therefore all Muslims must be treated as potential terrorists.
Indeed, Handschu originally dates back to 1985, when the courts prohibited the NYPD from investigating political and religious organizations and groups unless there was “specific information” that the group was linked to a crime that had been committed or was about to be committed. Following 9/11, the NYPD has counter-sued, sought to modify and/or ignored what are known as the Handschu Guidelines as they wished.
NYPD Deputy Commissioner of Intelligence and Counterterrorism John Miller said, without apparent shame, that the need to prevent terrorist attacks sometimes comes into conflict with the need to respect the constitutional rights terrorists in theory are attacking. “We have two sets of tensions that pull against each other every day, and the hardest thing to have to do is find a balance.” Um, no. Our freedoms are ensured by the Constitution John Miller, that document you are sworn to uphold and protect.
Miller might want to run his ideas by the Supreme Court, and perhaps a few of the innocent Muslim students whose religion alone put them under surveillance. They might argue that what the cops call the need for public safety indeed puts them outside the scope of Americans who qualify for that safety.
Serial idiot Lindsey Graham, among too many others, stated that if only more people in Paris had been armed, the tragedy would have been lessened.
He echoed a popular right-wing meme in America, that “all it takes is a good guy with a gun to defeat a bad guy with a gun,” and that therefore any form of gun control in these United States would render us more vulnerable to attack.
Such statements ignore multiple realities, one of which is that a bunch of would-be vigilantes would go to nightclubs and restaurants always armed, and that their blasting away inside a dark, crowded place in the midst of a panic would not kill more innocent people than the terrorists. Many people, for example, dramatically overestimate their own skills, never mind the accuracy of a handgun at distances of more than a few yards. Add in accidental shootings, deadly overreactions to things that are not threats, amateurs unsure who the bad guys are killing each other, stray rounds and that fact that many people in nightclubs and restaurants have had a drink or two, and you have a recipe for even more danger, not less.
But before we even worry about that, let’s enjoy the hypocrisy of this: it is perfectly legal in the United States for person on the FBI terrorist watch list to purchase guns and explosives, and many of them do.
Who in America other than terrorists cannot legally buy guns. That list includes felons, fugitives, drug addicts and domestic abusers. Fair enough.
But not terrorists (unless they are also felons, fugitives, drug addicts or domestic abusers.) A report from the Government Accountability Office hilighted by the Washington Post says at least 2,043 known and suspected terrorists in the United States legally purchased firearms between 2004 and 2014.
“Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law,” the Government Accountability Office concluded. This includes persons on the FBI’s consolidated terrorist watchlist. Note that records for 2011 and 2012 are incomplete “because of a programming error the FBI subsequently fixed,” according to the GAO. So no one really knows how many terror suspects legally bought guns over the last 11 years.
A bipartisan bill offered this year (the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015”) is strongly opposed by the National Rifle Association (NRA). The NRA states the bill is “aimed primarily at law-abiding American gun owners,” and that the bill was “sponsored by gun control extremists.”
Yes, yes, there are ways to purchase guns illegally on the street, and legally at gun shows, that bypass background checks and any other controls, so any would-be terrorists can still pick up some semi-automatic iron as needed.
At the same time, however, that our First, Fourth, and Fifth Amendment rights are being stripped away in the name of freedom and security, perhaps it is worth also taking another look at what might be done with the Second Amendment at the same time.
So this tells you about what you need to know about the cops’ respect for the First Amendment and the public’s right to know, as well as their contempt for the judicial system when caught in a lie.
A New York police officer who arrested a journalist/photographer on assignment for The New York Times in 2012 was convicted, albeit three years after the fact, in what was a simple, straightforward case, of falsifying a record to justify the unlawful arrest.
The officer, Michael Ackermann, 32, in the center of the photo above, was found guilty of a single felony count of offering a false instrument for filing. Officer Ackermann had claimed the photographer, Robert Stolarik, interfered with the arrest of a suspect by repeatedly discharging his camera’s flash in his face.
A subsequent “investigation” found that Stolarik did not own a flash or have one on his camera at the time. One does wonder how long such an investigation might have taken, considering it should have taken about 10 seconds after the arrest. Got a flash, sir? No? Ok, thanks, you are free to go.
“I think it’s important; it’s rare that people are held accountable for their actions,” the journalist said. “In this case, he lied, and he lied to protect himself, and it turned on him.”
Officer Ackermann testified during the trial that he had made an “honest mistake” when he claimed Stolarik’s camera partially blinded him as he helped fellow officers make an arrest. He said he had mistaken ambient light at the scene for a camera flash.
Wait, could we stop right there for a moment? Who has ever had a flash photo taken of themselves? You know, like when you see spots in front of your eyes for a few moments? Is there anyone other than this cop who can say with a straight face that it is possible to mistake a flash for no flash? In the dark, for God’s sake?
The prosecutor rejected Officer Ackermann’s explanation and contended that his actions had interfered with the freedom of the press and had subjected Stolarik to unlawful search and seizure, violating his First and Fourth Amendment rights.
Stolarik was taking pictures for a story about the NYPD’s controversial stop-and-frisk tactics, themselves considered by many to be a violation of the Fourth Amendment, when he saw officers arresting a young black woman. He was thrown to the ground and arrested by Officer Ackermann, charged with obstructing government administration and, of course, resisting arrest. The charges were quickly dropped.
Ed Snowden is right. We have lost too many of our freedoms. What the hell happened?
The United States has entered its third great era is what happened. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like.
We are now wading in the shallow waters of the third era, Post-Constitutional America, a time when our government is abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas– enshrined in the Bill of Rights– are disarmingly concise, the haiku of a People’s government. Deeper, darker waters lay in front of us, and we are drawn down into them. The king, jealous of the People’s power, wants some back.
Pre-Constitutional America: 1765-1789
History turns out to be everything that matters. America in its Pre-Constitutional days may seem familiar to even casual readers of current events. We lived under the control of a king, a powerful executive who was beholden only to the rich landowners and nobles who supported him. The king’s purpose was simple: to use his power over Americans to draw the maximum financial gain out of the colony, suppressing dissent in service to the goal and to maintain his own power.
If you lived in Pre-Constitutional America, you knew that imposed laws could be brutal, and punishments swift and often extra-judicial. Protest was dangerous. Speech could make you the enemy of the government that ruled you. Journalism could be a crime.
Nothing to Hide, Nothing to Fear?
There were many offenses against liberty in Pre-Constitutional America. One pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion. Americans’ property and privacy were torn apart, ransacked, often times more as a warning of the king’s power than any “legitimate” purpose the original approved law might have held. Some American was then the first to mutter in ignorance “But if I have nothing to hide, why should I be afraid?” He learned soon enough everyone was treated as an enemy of the government, everyone, it seemed, had something to hide, even if it turned out they did not.
The Stamp Act, and the flood of similar offenses, created in the Founders a profound suspicion of government unchecked, a confirmation that power and freedom cannot coexist in a democracy. What was needed, in addition to the body of the Constitution which outlined what the new nation’s government could do, was a remuneration of what that government could not do. The answer was the Bill of Rights.
Never Again: 1789 – 9/11/2001
There was no mistaking it: the Bill of Rights was written to make sure that America’s new government would not be the old government of a king. Each important amendment spoke directly to a specific offense committed by the king. The Bill would protect Americans from their government. The rights enumerated in the Bill were not granted by the government, but already present within the People. The Bill said what the government could not take away. Never again, the Founders said.
For over 200 years the Bill of Rights expanded and contracted. Yet through out, the basic principles that guided America were sustained despite war, depression and endless challenges. It was a bumpy road, but it was a road that traveled forward.
(The Founders were imperfect men, and very much of their era. As such, the rights of women and Native Americans were not addressed. Shamefully, the Bill of Rights did not destroy the institution of slavery, our nation’s Original Sin. It would take many years, and often much blood, to make up for those mistakes.)
Post-Constitutional America: 9/12/2001 to the Present
Then, one sharp, blue September 11 morning, everything changed, and our Post-Constitutional era began.
You know the story: NSA spying, drone killing, Guantanamo, arbitrary arrests and police violence. And for every short-hand example, there are many other motes of shame you have probably thought of as you read. If not, open today’s newspaper or Google “NSA” and they’ll most likely be there. Remember too that Manning, Snowden and other whistleblowers were able to pass on only relatively small portions of the information the government is trying to hide, and we haven’t even seen all of the Snowden documents yet.
But isn’t it all legal? Taking the most generous position, all the things the king did, and the government now does, were (albeit often in classified form) approved in (albeit often secret) courts. But in Constitutional America, there was a standard above the law, the Constitution itself. The actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying principles of our democracy.
The accepted history of our descent into a Post-Constitutional state is following 9/11, evil people under the leadership of Dick Cheney, with the tacit support of a dunce like George W. Bush, pushed through legally-lite measures to allow kidnapping, torture, imprisonment and indefinite detention, all direct contraventions of the Bill of Rights. Obama, elected on what are now seen as a series of false promises to roll back the worst of the Bush era-crimes, went full-in for the same or more. That’s the common narrative, and it is mostly true.
What is missing is a more complete view. Even today, years after 9/11, 45 percent of Americans say that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Snowden’s revelations about the NSA revealed in depth how far the government has gone, though much of the raw outlines of what he filled in have been known for several years without much exposure in the mainstream media.
Americans, ignorant of their own history, seem unsure whether or not the NSA’s actions are indeed justified, and many feel Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is “Patriot or Traitor?” and toward the war on terror, “Security or Freedom?” There is no widespread movement toward any real change in what the government has been doing. It seems many Americans like it, and support it.
To return to the set of rules, laws and beliefs that we still claim in high school civics classes define us, the Bill of Rights, means first deciding we will no longer agree to have those rights taken away from us. No, no, not taken away– given away, too easily. Too many Americans, compelled by fear and assured by propaganda, want the government to expand its powers further, embracing dumb-headly the idea that freedom is in conflict with security. The Founders, even as they remained under significant threat from the then-World’s Most Powerful Nation, knew all along the real dangers did not lie out over the water, but on land, at home, inside.
But wait, people say. I write angry emails all the time and nobody has kicked down my door. I went to court for something and it worked just the way the rules said. I was randomly selected at the airport and it took five minutes, no big deal. True all. For people who’s last strongly held belief was over who got cheated on the last round of Dancing with the Stars, life isn’t very different.
At issue in post-Constitutional America is not that all rights for all people all the time will disappear (though privacy seems on the chopping block.) It is that the government now decides when, where and how the rights which were said to be inalienable still apply. Those decisions will likely be made in secret and will be enforced without recourse. You’ll never know who is next.
We are the first to see what is post-Constitutional America, and perhaps the last who might stop it.
Cody Wilson, who created computer code that will allow someone to 3-D print a handgun, is trying now to use the First Amendment’s right to free speech to assure his Second Amendment right to bear arms.
And he has to sue to the U.S. Department of State to do it.
A Plastic Gun
3-D printing allows the use of plastics and some metals to create three dimensional objects, using an off-the-shelf “printing device” and computer code. You can create the code yourself if you are smart like Cody, or you can buy and download the code from a smart guy like Cody if you are not as smart. The printer takes that code and builds up the object, layer-by-layer (watch it work.) The tech is amazing, and is even being used now on the International Space Station to fabricate spare parts on demand.
Two years ago Cody posted online what is believed to be the world’s first computer code to create a 3-D printable gun. Wilson’s files for what he called the Liberator, a single-shot pistol, were partly a statement about freedom in the digital age and partly an assertion of his Second Amendment rights.
Enter the State Department
A few days after the plans for the Liberator were put online, the State Department ordered Wilson to remove them, threatening him with jail and fines for breaking rules on the export of military data.
State informed him that by posting his files online he may have violated a complicated set of federal regs, the International Traffic in Arms Regulations (ITAR), which seek to prevent the export of sensitive military technology. The regulations are pretty heavy stuff, aimed at stopping the export of classified military hardware, weapons of mass destruction, that sort of thing.
It is unclear that the intent of the regulations was something to do with 3-D printing of a single shot handgun. It appears that, in panic, the Federal government looked through its books for a way to stop people like Cody, and could not come up with anything else without violating the Second Amendment. Hence, the call to the State Department to step in as pseudo-law enforcement.
Note also that no terrorists have been stopped. Wilson removed the code from the web as ordered, but not before it was downloaded 100,000 times. It thus exists forever in cyberspace. And while Wilson is no doubt a clever lad, he is not the first/last/only person to know how to program a 3-D printer.
Wilson Fights Back
Wilson’s first move against State was to spend two years and thousands of dollars on lawyers to him file paperwork to comply with the ITAR regulations. State, for its part, took no action on Wilson’s case (Wilson’s attorneys claim State is obligated to issue a ruling in 60 days and just did not.) The State Department also did not respond to Wilson’s queries that it has no authority to regulate his actions inside the United States, where he believes the Second Amendment applied.
And so Wilson moved to the next step, filing suit via his company in May against the State Department, claiming that its efforts to stop him from publishing his plans amount to a prior restraint on free speech.
Basically, Wilson is trying to use the First Amendment to protect the Second. Pretty sure that is a first.
Wilson’s initial response from the judiciary was not warm. In August, a district judge denied a preliminary injunction against the State Department’s order, stating that any potential violations of Wilson’s Constitutional rights did not outweigh the public interest. Wilson filed an appeal to that decision and the case will be next heard by the 5th Circuit Court of Appeals.
Regardless of one’s thoughts on weapons, the issues here are Constitutionally significant, testing the depth of the First Amendment in the face of ever-expanding technologies, as well as the balance between individual rights and public good. The latter test has always been how the courts have judged limits on free speech (“shouting fire in a crowded theatre.”)
This one has Supreme Court written all over it.
Retired general and former Democratic presidential candidate Wesley Clark on Friday called for World War II-style internment camps to be revived for “disloyal Americans.”
In an interview on MSNBC in the wake of the mass shooting in Chattanooga, Clark said that during World War II, “if someone supported Nazi Germany at the expense of the United States, we didn’t say that was freedom of speech, we put him in a camp, they were prisoners of war.”
(During WWII, the United States detained over 11,000 ethnic Germans in the U.S. The government examined the cases under the Alien and Sedition Acts individually in a form of limited due process, and detained relatively few in internment camps. However, over 120,000 Japanese-Americans were sent off to camps without any form of due process. Most Americans consider these actions along the most shameful abuse of government power and civil rights since the abolition of slavery. The United States continues to pay reparations to those interned.)
Clark called for a revival of internment camps to help combat Muslim extremism, saying, “If these people are radicalized and they don’t support the United States and they are disloyal to the United States as a matter of principle, fine. It’s their right and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.”
(It is unclear what “conflict” Clark is referring to, but we can assume it is the undeclared war on an idea, terrorism. Terrorism has existed roughly since the beginning of civilization, so the duration of any conflict against it seems open-ended.)
Clark’s proposal appears to be based on the concept of targeting people for government scrutiny who are not “radicalized,” whatever that means, but who the government, or perhaps just Clark by himself, decides may become radicalized at some unspecified future date.
“We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning,” Clark said. “I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists.”
For those keeping score, Clark’s proposal would violate, at a minimum, the rights to free speech, due process and habeas corpus, and cruel and unusual punishment, all the while setting a precedent for “thought crime” in the United States.
Here’s the interview. Please note how the MSNBC drone interviewer does not challenge Clark in any way:
In the next release of statistics from the FBI and DHS about how many terrorist plot they have foiled, remember this one is included.
A 17-year-old Virginia teen, Ali Shukri Amin, faces up to 15 years in prison for contributing to Coin Brief and for Tweets about encryption and Bitcoin. He recently pleaded guilty to providing material support to Islamic State for all that. Amin was a high school honors student in suburban Virginia until his arrest.
Dana Boente, the U.S. Attorney for the Eastern District of Virginia, said the youth’s guilty plea “demonstrates that those who use social media as a tool to provide support and resources to ISIL will be identified and prosecuted with no less vigilance than those who travel to take up arms with ISIL.”
According to the defendant’s signed “Admission of Facts,”, Amin joined Twitter last June and acquired some 4,000 followers and tweeted about 7,000 times.
Here’s what, according to Amin’s court documents, landed him in prison:
— An article he wrote explained what Bitcoins were, how the Bitcoin system worked and suggested using a new Bitcoin wallet, which keeps the user of Bitcoins anonymous. The article included statements on how to set up an anonymous donations system to send money, using Bitcoin, to the mujahedeen.
— Amin tweeted that IS needed an official website and that IS should stop releasing propaganda “in the wild” and instead should consider using JustPaste.it.
— Also also Tweeted this link about Bitcoin.
— According to the government, Amin, “Through various tweets, provided information on how to prevent a website from being taken down, by adding security defenses, and he solicited others via Twitter to assist on the development of the website.”
— On his blog, Amin “authored a series of highly technical articles targeted at aspiring jihadists and ISIL supporters detailing the use of security measures in online communications to include the use of encryption and anonymity software, tools and techniques, as well as the use of the virtual currency Bitcoin as a means to anonymously fund ISIL.”
Amin, who apparently never left his suburban home, is also accused of “radicalizing” an 18-year-old Virginia youth who later traveled to Syria. Amin admitted that he helped the boy get a mobile phone, assisted him with travel, gave him a ride to the airport in his parents’ car and pointed him generally to where he would find IS supporters in Turkey.
Let’s Be Afraid
Critical to understanding how terrifying this arrest and prosecution are is understanding that Amin is going to jail not for what he wrote, but to whom he wrote to and, apparently, what he was thinking when he wrote it.
In other words, information, some of it amazingly technical, is splattered all over the web about Bitcoin, security, encryption and the other topics the high school kid wrote about. The processes are the same whether the money is going to your cool Kickstarter indie band project, or to Islamic State. Amin did not add anything special to the huge pile of info out there.
Instead, he was busted because he Tweeted and blogged openly in the direction of Islamic State. He was thinking nice thoughts about IS while doing it. There is no indication that IS asked him to do this, or responded to him, or even acted on any information he posted.
It is worth noting that IS, like you, could Google “Bitcoin” or any other of Amin’s subjects and read as much material as they wished. In such a case, would those websites also have some culpability toward supporting terrorism?
The limited assistance to the other boy in traveling notwithstanding, Amin seems to be headed to Federal prison for a thought crime tied up in violations of his First Amendment rights.
Keep that in mind before you blog, Tweet, update your Facebook or click on some of the links above, because the Feds are watching.
Social media sites such as Twitter and YouTube would be required to report “terrorist” videos and other content posted by users to federal authorities under legislation approved this past week by the Senate Intelligence Committee.
The measure, contained in the 2016 intelligence authorization, still has to be voted on by the full Senate. The measure applies to “electronic communication service providers,” which includes e-mail services such as Google and Yahoo. “Posted content” would likely also apply to readers’ comments, and in theory to authors’ postings such as this one.
Companies such as Twitter have recently stepped up efforts to remove terrorist content in response to growing concerns that they have not done enough to stem whatever the government deems propaganda. Twitter removed 10,000 accounts over a two-day period in April. Officials want more. “In our discussions with parts of the executive branch, they said there have been cases where there have been posts of one sort or another taken down” that might have been useful to know about, a Senate aide said.
The snitch bill is modeled after a federal law — the 2008 Protect Our Children Act — that requires online firms to report images of child pornography and to provide information identifying who uploaded the images to the National Center for Missing and Exploited Children. The center then forwards the information to the FBI. Of course actual images of child porn are pretty straightforward to notice, exploit innocents and involve no legitimate protected speech.
But otherwise, sure, it’s the same thing. Statement: I Like Terrorism = Child Rape Images.
Industry officials privately called the new law a bad idea only because it sounds like an expensive hassle for them. “Asking Internet companies to proactively monitor people’s posts and messages would be the same thing as asking your telephone company to monitor and log all your phone calls, text messages, all your Internet browsing, all the sites you visit,” said one official.
Wait, isn’t that what we’ve been told the NSA has been doing to us since 9/11?
Still, national security experts who will likely personally profit from the measure say it makes sense. “In a core set of cases, when companies are made aware of terrorist content, there is real value to security, and potentially even to the companies’ reputation,” said Michael Leiter, a former director of the National Counterterrorism Center, now an executive vice president with Leidos, a national security contractor. “Rules like this always implicate complex First Amendment and corporate interests. But ultimately this is a higher-tech version of ‘See something, say something.’”
But what about those nasty First Amendment issues?
“The intelligence bill would turn communications service providers into the speech police, while providing them little guidance about what speech they must report to the police,” said Gregory Nojeim of the Center for Democracy and Technology. “The natural tendency will be to err on the side of reporting anything that might be characterized as ‘terrorist activity’ even if it is not. And their duty to report will chill speech on the Internet that relates to terrorism.”
America: A nation of snitches, watching each other, reporting whatever thing we think is suspicious or terrorism. To The Authorities. But it’s for our own good, right Citizens? I think I saw a Twilight Zone like that. No, wait, it was the McCarthy Era, sorry.
It comes down to things like this as citizens fight to preserve their basic rights in the face of militaristic police encounters. So let us use technology to fight back.
A new smartphone app from the ACLU (available in iPhone and Android versions) does two very good things. It allows citizens to exercise their right to video police encounters in the public space, and it guards against the cops unlawfully destroying that video to cover up their own crimes. The ACLU app accomplishes this by allowing people to auto-upload cellphone videos of police encounters to the ACLU. The ACLU will then review and preserve the video footage, even if the cops seize the phone and delete the video or destroy the phone.
In addition, once the video is uploaded, the user can delete the information from his/her phone, lessening the chance of retaliation by the cops if they discover the “evidence” during a post-arrest search.
The app features a large red “Record” button in the middle of the screen. When it’s pressed, the video is recorded on the phone and a duplicate copy is transmitted simultaneously to the ACLU server. When the “stop” button is pressed, a “Report” screen appears, where information about the location of the incident and the people involved can also be transmitted to the ACLU. The video and the information are treated as a request for legal assistance and reviewed by staff members. No action is taken by the ACLU, however, unless an explicit request is made, and the reports are treated as confidential and privileged legal communications. The videos, however, may be shared by the ACLU with the news media, community organizations or the general public to help call attention to police abuse.
The app is available in English and Spanish. It includes a “Know Your Rights” page, a library of ACLU materials in your pocket.
“People who historically have had very little power in the face of law enforcement now have this tool to reclaim their power and dignity,” said the director of the Truth and Reinvestment Campaign at the Ella Baker Center, which is working with the ACLU of California to support the launch of the app.
Who will guard the guards? We will.
A story of our times, with massive First Amendment issues embedded.
A federal judge ruled that a group (more below, who they are makes this case even more complex) may put up posters on New York’s public buses and subways saying “Killing Jews is worship that draws us close to Allah.” The poster features a young man in a checkered headscarf with the additional words “That’s His Jihad. What’s yours?”
The poster is now at the epicenter between public safety and free speech. On Tuesday, a District judge ruled New York’s Metropolitan Transportation Authority (MTA) cannot stop the controversial ad.
The MTA argued the ad could incite violence against Jews.
However, MTA officials “underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements,” the judge stated in his ruling. “Moreover, there is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”
The MTA has now fired the next shot in the struggle, banning all “political” advertising on its subways and buses. You can certainly expect that decision to be challenged by a very broad range of actors.
The Speaker Versus the Speech
The issues surrounding the “Kill Jews” poster are complicated, in that the sponsor is a pro-Israel, anti-Muslim organization. Pamela Geller, the president of the American Freedom Defense Initiative (AFDI), the group that purchased the ads and sued the MTA to run them, was overjoyed at the court’s decision to allow her to post the, to some, inflammatory ads.
The Southern Poverty Law Center considers AFDI an “anti-Muslim” hate group. For example, earlier this year AFDI organized a portrait of the Prophet Mohammed contest, despite objections from Muslims who consider images of the Prophet blasphemous.
The presumed purpose of the “Kill Jews” ads placed by a pro-Israel group is to conflate the murder of innocents of one religion by smearing all members of another religion.
But can they say that kind of thing? Isn’t it Hate Speech and isn’t that illegal?
The Limits of Free Speech
The right to free speech enshrined in the First Amendment to the Constitution isn’t there for the easy cases; it is there for the tough ones.
The Supreme Court has thus been very reluctant in modern times to issue limits on free speech; what is now commonly called “hate speech,” things like the Klu Klux Klan using the N-word, or religious fundamentalists protesting at veteran’s funerals by way of anti-gay slurs, have been ruled repeatedly to be protected acts of free speech. You get the good with the bad, no matter what you personally consider the good parts and the bad parts.
See how it works?
Some Bad History
The broad concept of free speech is somewhat recent in the Supreme Court’s mind.
One of the most shameful examples of restraint comes from the early 20th century case of U.S. v. Schenck. In that case, the Court decided Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. It was in that case that Justice Holmes made his famous statement in favor of restraint, the one about free speech not allowing someone to shout “fire” in a crowded theatre.
So hate speech is illegal, like shouting Fire! and panicking a whole theatre full of people, right?
That Was Then, This is Now
The Supreme Court then did a 180 degree turn in the 1969 case of Brandenburg v. Ohio, which basically overturned Schenck. The Court held that inflammatory speech, even speech advocating violence, is protected under the First Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That is where today’s New York District judge’s specific wording came from. When he said that New Yorker’s would understand the broader political point of the “Kill Jews” poster and not actually be moved to murder, he was confirming the standard set in Brandenburg v. Ohio: you have to do more than just announce an intent toward violence, your statement has to be such that people will be actually willing to follow it.
Back to the New York Buses
Of course predicting what people might do in response to any bit of speech is very hard stuff. But the Supreme Court in fact granted that power to predict to the judicial system. In the “Kill Jews” case, the judge clearly decided no one would see the ads and decide, based on that, to actually commit murder.
And that brings us back to Justice Holmes, the same Supreme Court judge who gave us the “fire in the crowded theatre” lines. Holmes later recanted, and became a firm advocate of nearly unrestrained free speech. Holmes wrote (Abrams v. United States) that the marketplace of ideas offered the best solution for tamping down offensive speech:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
In other words, let the ads play out on the New York buses and subways. The people are smart enough to know garbage when they smell it.
The government can kill all cell service in a designated area of its choice during “emergencies,” and does not want to disclose any details about how or when they might employ this.
Implications for the First Amendment are made clear by one known local use — San Francisco’s Bay Area Rapid Transit System disabled service to quell protests in four downtown San Francisco stations over the fatal shooting of Charles Blair Hill by police.
Standing Operating Procedure 303
The Department of Homeland Security came up with the Federal-level plan — known as Standing Operating Procedure 303 — after cellular phones were used to detonate explosives targeting the London public transportation system in 2005. Unbeknownst at the time to the public, the government shut down cell service in various locations in New York City, primarily around tunnels to and from Manhattan.
SOP 303 spells out a “unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices.” Since the details of SOP 303 remain secret, no one is certain when or how it might be invoked.
The U.S. Court of Appeals for the District of Columbia Circuit in February sided with the government and ruled that the policy did not need to be disclosed under a Freedom of Information Act (FOIA) request from the Electronic Privacy Information Center (EPIC.) The court agreed with the government’s citation of a FOIA exemption that precludes disclosure if doing so “could reasonably be expected to endanger the life or physical safety of any individual.”
EPIC asked the court to revisit its ruling. On April 10, the court ordered the government to respond, a move that suggests the appellate court might rehear the case.
EPIC originally asked for the document in 2011 in the wake of the shut down of mobile phone service in the San Francisco Bay Area subway system during a protest. The government withheld the information, EPIC sued and won, but the government then appealed and prevailed.
Who Decides When to Kill the Network?
Under the direction of the so-called National Security Telecommunications Advisory Committee, SOP 303 allows for the shutting down of wireless networks “within a localized area, such as a tunnel or bridge, and within an entire metropolitan area.” That Advisory Committee is a Reagan-era, presidentially-appointed body composed of up to 30 senior executive-level representatives from communications, information technology, banking, and aerospace companies.
Since SOP 303 is not a law, it cannot be enforced. However, the telecoms have agreed to cut off cell service voluntarily whenever the Federal government requests SOP 303 be invoked.
The process of shutting down the cell service goes through the National Coordinating Center for Telecommunications (NCC), a coordination body set up by Ronald Reagan in 1984. The NCC, which includes representatives from the Central Intelligence Agency, Federal Emergency Management Agency, National Security Agency, every important cabinet department, and a few dozen big telecommunications and defense companies, takes shutdown requests from state and national Homeland Security officials, verifies whether they are “necessary,” and passes those requests on to wireless carriers in the affected areas.
First Amendment Questions
Because cutting off communications imposes a prior restraint on speech, it’s unclear whether SOP 303 is constitutional, and of course the specifics of the agreement are secret and the limits of government authority in this area have never been tested in court.
According to Eva Galperin of the Electronic Frontier Foundation, governments in places like China regularly shut down cellphone service to quell protests. “They did it in Egypt as well,” she explained, during the protests that deposed former Egyptian president Hosni Mubarak.
The exact decision-making process in the United States is classified. But you’ll know when it happens — check your phone for bars.
First Amendment Semi-Win After Military Police Harass, Sexually Threaten Journalist
A very basic tenet of our democracy is that a free press exists to report to The People on the actions of their government, and that government is prohibited by the beautiful words of the First Amendment from interfering. In a small instance in Ohio, after the government had military police officers in the United States harass and confiscate the cameras of journalists, the journalists went to court and won back their rights.
The U.S. government agreed to pay The Toledo Blade newspaper $18,000 for seizing the cameras of a photographer and deleting photographs taken outside the Lima Tank plant last year. In turn, The Blade agreed to dismiss the lawsuit it filed U.S. District Court on behalf of photographer Jetta Fraser and reporter Tyrel Linkhorn against Chuck Hagel, then Secretary of Defense and the military police officers involved in the March 28, 2014, incident.
An attorney for The Blade said the settlement was made under the First Amendment Privacy Protection Act, which prohibits the government, in connection with the investigation of a criminal offense, from searching or seizing any work product materials possessed by a journalist. “The harassment and detention of The Blade’s reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state.”
The government admits no wrongdoing, however, and just paid off the settlement.
Here’s what happened. The reporter and photographer were in Lima to cover a news conference at another facility and had been tasked to take photos of area businesses for future use, including pictures of the tank plant, known as the Joint Systems Manufacturing Center.
As the pair were leaving they were detained by three military police officers and questioned. Fraser showed the officers her Blade identification, but initially declined to provide her driver’s license as she was not driving. She was removed against her will from her vehicle and handcuffed for more than an hour.
During the confrontation, the officers repeatedly referred to Ms. Fraser in the masculine gender. She objected and was told by one officer, “You say you are a female. I’m going to go under your bra.”
The officers then confiscated two cameras, memory cards, a pocket-sized personal calendar, and a notebook in clear violation of the First Amendment.
Philly Cop Arrests Man for Photographing Philly Cop Harassing Homeless Woman
A college student arrested as he photographed a Philadelphia police officer harass a homeless woman in a public park was put into handcuffs and held for an hour. Federal jurors must now decide whether the cop had cause to cuff Coulter Loeb, 24, and charge him with disorderly conduct.
The case, however, is about far more than a simple disorderly conduct rap. At issue is how the Philadelphia government sees the First and Fourth Amendments to the Constitution, and how it views people fulfilling their responsibilities as citizens to provide oversight to government employees performing their jobs. And it does not look good for all that in Philly.
Things went south almost from the get-go, after the trial judge dismissed any connection between the arrest and the First Amendment.
In a pretrial order that covered two similar cases, the judge ruled that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011, when this incident occurred. “Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons [to] adopt that change,” U.S. District William Yohn wrote. He therefore threw out Loeb’s free-speech claim, leaving a jury to weigh only the Fourth Amendment issues of false arrest and malicious prosecution.
Moving on to how the city of Philadelphia views these issues, we turn to the city attorney working the case, who described arrestee Coulter Loeb, in front of his ACLU attorney, as “a meddlesome 24-year-old” with “very high-minded ideas about government” and the role of media. The Assistant City Solicitor told jurors that Loeb was interfering with police work by photographing police work in a public place.
But what was in the mind of the arresting officer? “He [Loeb ]looked me up and down, and then took one step back. That to me was being a wise guy,” said the cop.
Irony Alert: Yes, yes, it was in Philadelphia in 1787 that the Constitutional Convention was held. How far we have fallen.
As regular readers of this blog know, a central theme of mine is Post-Constitutional America, the third great era of our history.
The Way It Was
In the first era, the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. As imperfect as all that was, it represented a concept of moving toward the better. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
The Way It Is
Now, we are wading into the ever-deeper waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism.
America has entered its third great era: the post-constitutional one. Here we have only the rights the government allows us to have. Think of it as a variable totalitarian system. Free speech is not outlawed, but can be restricted at will — a punk cop Tasers a legitimate protester, the Federal government slams a prominent journalist away. Privacy exists, but only as the government doles it out, often as a reward for not being a troublemaker, while retaining the “right” to pull it away. The Stasi and 1984‘s Big Brother sought total control over every aspect of peoples’ lives; today’s power is used as needed, though the mechanisms of broad application exist and grow.
Not by Any Recognizable Rules
On or about Sept. 11, 2001, American character changed. What Americans had proudly flaunted as “our highest values” were now judged to be luxuries that in a new time of peril the country could ill afford. Justice, and its cardinal principle of innocent until proven guilty, became a risk, its indulgence a weakness. Asked recently about an innocent man who had been tortured to death in an American “black site” in Afghanistan, former Vice President Dick Cheney did not hesitate. “I’m more concerned,” he said, “with bad guys who got out and released than I am with a few that, in fact, were innocent.” In this new era in which all would be sacrificed to protect the country, torture and even murder of the innocent must be counted simply “collateral damage.”
At its root is a maddening ambiguity born of a system governed not by any recognizable rules of evidence or due process but by suspicion, paranoia and violence.
That sums it up for me about as well as anything else I’ve been allowed by the government to read.
The Dearborn, Michigan area is home to one of the largest Muslim populations in the United States, so this can’t be blamed on some small-town cops ignorant of the law. Of course, since that “law” is actually the First Amendment to the U.S. Constitution guarantee of freedom of religion, even that is not much of an excuse.
So we’re left with the “What were they thinking?” defense.
A Muslim woman who was forced to remove her hijab by police in Michigan claims her religious rights were violated. She filed a civil rights lawsuit demanding the policy change.
Today’s American Traffic Stops
Malak Kazan, 27-years-old, pictured, is suing the police department and city of Dearborn Heights, a suburb of Detroit, after officers refused her request to keep her headscarf on while taking booking photos.
Kazan was stopped for a traffic violation and arrested after the cops found her license had been suspended for outstanding traffic tickets. Fair enough. At the police station she was told to remove her headscarf. When she said that would violate her religious beliefs, the cops said there were no exceptions. A supervisor said the same thing. Kazan says she then requested a female officer take the picture, also denied. Her lawsuit says she was threatened with further detention if she didn’t comply. Kazan reluctantly removed her hijab and was photographed under protest.
The lawsuit demands the police department change its policy to allow headgear worn for religious purposes.
The Fake Excuse
Dearborn Heights Police Chief Lee Gavin said his department requires individuals to remove head coverings, as they can “contain concealable items that could pose a threat or chance of injury to the cops or to themselves.” He said procedure is to have women remove hijabs in the presence of a female officer, but there aren’t always enough female officers at the station.
The Chief did not explain why any such search was not conducted prior to the booking photo, at which time Kazan had already been in police custody for some time. Any threatening objects concealed could have long come into play at that point. Typically suspects are searched at the time of arrest, and immediately upon arriving at the police station.
Dearborn Out of Sync
After various legal actions, several cities, including all of Orange County, California and Washington, DC, have changed their policies to allow hijabs and other religious headgear. Generally, so does TSA. An officer may request removal of religious headgear only when a traveler is unable to pass metal detection, or after a pat down when a concern has not been resolved.
Reminder: It will be the taxpayers on the hook for the costs of litigation, plus the inevitable settlement offered to Kazan.
This– THIS LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail. Brown was just sentenced to five years in jail on other charges that the government could make stick, in another step towards the criminalization of everything.
The United States v. Barrett Brown
Brown, pictured, 33-years-old, was arrested in 2012 after his and his mothers’ homes were raided and he used “threatening” language toward FBI officers in a response posted to YouTube. He was subsequently accused of working with hackers, whose efforts yielded a huge tranche of embarrassing and revealing information concerning misbehavior and sleaze at U.S. government contractors, primarily Stratfor.
Among the secrets exposed were collaborative efforts between the government and private contractors to monitor social networks, and to develop online surveillance systems.
The charges against Brown included the claim that merely linking to the leaked information was illegal, an alleged crime for which prosecutors sought decades in prison. Brown ultimately signed a plea deal on three lesser charges: transmitting a threat (the YouTube video), trying to hide a laptop computer during a raid, and to being “accessory after the fact in the unauthorized access to a protected computer.” He spent a year awaiting trial in federal prison, and was subject to a six-month gag order prohibiting him from even discussing his case with the media.
On January 22, a Dallas court sentenced Barrett Brown to 63 months in federal prison, minus time already served. He was also ordered to pay $890,000 in restitution to the Stratfor Corporation.
Who is Barrett Brown?
Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous (he denies the association) and most certainly was deeply involved with broad free speech issues online. In 2011, Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to documents on the Wikileaks site. The docs are still there.
The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments, plus the social media stuff mentioned above.
To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the Internet and which was already available worldwide for viewing.
Looking for a Test Case
Prior to Brown pleading guilty to the three lesser counts he was sentenced for January 22, the government dropped the other charges related to linking as a crime. Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while they were clearly looking to set a precendent on the Brown case, they did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater goal.
What kind of test case? Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the Internet such as the Snowden documents, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.
For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at various work sites.
Before Barrett Brown, Me?
The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.
In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from my blog.
State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment. I was defended by several excellent lawyers, and retired from State on my own terms, including no gag orders.
There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders, as was Brown.
There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:
— With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.
— In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.
— Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.
Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.
Who could have guessed that in 2015 a click of the mouse would be a subversive act?
There will be many, many articles today speculating what Dr. Martin Luther King would say about this event or that. There is much to talk about — the police killings of young black men, crippling economic inequality (today the 85 richest people on the planet have the same wealth as the poorest 3.5 billion combined), the use of gerrymandering and election day tricks to disenfranchise people — the list is a long one.
Dr. King’s most powerful message revolved around freedom. Freedom for blacks, freedom for whites, freedom for Americans, freedom. Writing from jail, in his famous letter from Birmingham, King said “Injustice anywhere is a threat to justice everywhere.” King was rightly focused primarily on the injustices of segregation. But his concept of freedom extended far beyond simply race. He understood the word in the broadest possible sense, and so I’ll add one more article to the stack today putting words into Dr. King’s mouth, seeking to bring his message forward.
Following a singular day — one day — of terror attacks, we set fire to the whole world. Willingly, almost gleefully, we invaded Afghanistan and Iraq, the former on the promise of bloody revenge and the latter based on flimsy falsehoods that today seem as real as childhood beliefs. We reinvaded Iraq in 2014, and brought war to many other places. But we want to believe and so it is easy to lie to us, just like with the Tooth Fairy.
Worse yet, we turned on ourselves. With a stroke of a pen, we did away with 226 some years of bitterly fought for civil rights — silence the First Amendment and do away with critics and whistleblowers, cow journalists and use the police to break up the peaceful assembly of citizens seeking to address their government, rip open the Fourth Amendment and allow the government to spy into our lives. Plumbing for the depths of evil, we as a nation torture men, create an archipelago of secret prisons and make excuses to keep them still open, build a regime of indefinite confinement and rendition to feed our concentration camps, hungering for flesh. When even that was not enough, we unleashed death from the sky, smiting people who bothered us, maybe occasionally threatened us, often times simply people who were near by or looked like our possible enemies. In the calculus of the day, we kill them all without a concern that any deity would sort the bodies out later. How much would be enough for revenge?
That our nation can be both vengeful and impersonal at the same time horrifies. I wonder what Dr. King would say.
We thought we had a chance at change in 2008 but instead were proven again to be just dupes and amateurs. He could have turned it all around, in those first weeks he could have asked the rivers to flow backwards and they just might have. He could have grounded the drones, torn up the Patriot Act, held truth commissions to bring into the light our tortures, re-emancipated America in ways not unlike Lincoln did in the 1860s. Slam shut the gates of Guantanamo, close the secret prisons that even today still ooze pus in Afghanistan, stop the militarization of Africa, bring the troops home, all of it, just have done it. What a change, what a path forward, what a rebirth for an America who had lost her way so perilously. One man could have made a difference and when he did not even try, he helped solidify in America a sense of cynicism and powerlessness that empowers evil people further. I wonder what Dr. King would say.
Today, this day, we are left with only ironic references to where we were and what we had been. We now today go through the motions of a celebratory day like an old married couple dutifully maintaining civility where joyous lust once was. We are raising a new generation who accept that their nation tortures, invades, violates and assassinates, all necessary evils requiring us to defame democracy while pretending to protect it.
On this same day we celebrate the legacy of Dr. Martin Luther King, who wrote to us all from a jail cell in sweltering Birmingham. King’s guidance in that letter was that the “means we use must be as pure as the ends we seek.” We cannot fight wrongs by committing wrongs. For what noble crusade do we allow the torturers to walk free? To claim the right to kill people, even Americans, anywhere in the world simply because we can do so? Why do we prolong wars, long ago not just lost but rendered pointless, in Afghanistan and Iraq and elsewhere? For what crusade do we keep our enemies in Guantanamo? These are the features and questions of Post-Constitutional America. I wonder what Dr. King would say.
I’ve been accused of over-romanticizing America’s Constitutional Era, 1789-9/11/2001. Indeed, didn’t the worst of the abuses Dr. King fought against take place during that time, as King describe them “vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity.”
The horrors ranged from those depths to the smallest of examples; again, from Birmingham, King wrote “when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people.”
America’s Constitutional Era was grossly imperfect. Yet for its obvious failings, there was a sense of the possibility of progress; halting, awkward, unfinished, but, well, for lack of a better word and to use a word that has become a symbol of modern times’ irony, Hope. Dr. King believed in Hope, and indeed based the soul of his movement on it — things could be made better, saying “If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail.” I wonder what Dr. King would say today about America.
Lots of talk today, Martin Luther King Day. But those are some of the questions Dr. King would demand answers for from his grave.
Challenges to free speech don’t always involve guns.
Citizens, you have an obligation to remain silent. What you say online, once upon a time an arena of free speech, can and will be used against you.
Here are two creeping examples.
In the UK
Six British soldiers were killed in Afghanistan, what the Prime Minister called a “desperately sad day for our country.” A British teenager, Azhar Ahmed, went on Facebook to angrily object, saying innocent Afghans killed by British soldiers receive almost no attention from the media. He opined the UK’s soldiers in Afghanistan are guilty, their deaths deserved, and are therefore going to hell.
The following day Ahmed was charged with “a racially aggravated public order offense.” He was convicted “of sending a grossly offensive communication,” fined and sentenced to 240 hours of community service. The judge Ahmed’s opinions “beyond the pale of what’s tolerable in our society.”
The Independent newspaper noted that Ahmed “escaped jail partially because he quickly took down his unpleasant posting and tried to apologize to those he offended.” Apparently, says Glenn Greenwald at The Intercept, “heretics may be partially redeemed if they publicly renounce their heresies.”
Criminal cases for online political speech are now commonplace in the UK. Around 20,000 people in Britain have been investigated in the past three years for comments made online. The investigations have by no means been neutral, instead directed at the country’s Muslims for expressing political opinions critical of the state’s actions.
Wow, luckily this can’t ever happen in America… right? Oh wait, it just did.
A man convicted in a fatal car crash and released early from prison on parole has ended up back behind bars after an Ohio judge and the victim’s family took issue with a post he made on Facebook.
Ryan Fye’s post included a photo of him making an obscene gesture and a message saying, “Prison didn’t break me. It MADE me.” Fye claims he was responding to a Facebook threat from someone unrelated to his case who said they “couldn’t wait to bump into” him and that prison ought to have made him tough enough to handle the encounter.
The message upset relatives of the man killed by Fye in the 2013 crash. A judge also found the Facebook posting disrespectful toward the family and concluded it violated parole sanctions imposed on Fye.
While typical terms of probation prohibit threats, intimidation, harassment, and retaliation against the victims, prosecution, judges, family of victims and so on, it is quite unclear that Fye’s Facebook posting is even directed at any such people, or that it is even a threat or act of intimidation. Many people might characterize it as boastful at worst.
Fye’s defense attorney said Fye didn’t violate probation or the law. “Committing a crime is a probation violation, not abiding by the rules is a probation violation. Mr. Fye didn’t do any of those things.” Fye is back in custody while he appeals the judge’s decision to lock him up.
Over a Facebook posting.
A handful of ragtag, plucky patriots defended their own misguided understanding of free speech by seeing the Seth Rogen-James Franco assassination bro-movie The Interview on our most American of holidays, Christmas.
God Bless The Interview
At the Austin Alamo Drafthouse (Remember the Alamo!) a few, proud moviegoers stood before the film ran to sing Lee Greenwood’s “God Bless the USA”, and posted the effort to YouTube. The brave representative of that band of brothers and female virtual brothers, risking near-certain death at the hands of any North Korean sleeper agents in Austin, reminded the audience that beer is better in a democracy. The sing-along ended with chants of “USA! USA!”
The owner of the Alamo Drafthouse said “It’s more than watching a silly Seth Rogen buddy comedy. Today it’s really, in a small way, it is sort of an act of patriotism to come and watch this movie this week.”
In Atlanta, similar selfless acts were seen as the sold-out crowd sang along to Kate Smith’s rendition of “God Bless America” before the screening of Sony Pictures’ ode to free speech and assassination. “The movie, and the singing,” said the Atlanta-Journal Constitution, “served as a statement from many theatergoers that a foreign power would not dictate what forms of entertainment Americans could or could not enjoy.”
Perhaps a little insight is needed in these heady times.
In November someone hacked deeply in Sony Entertainment’s U.S. computer network. They dumped all sorts of data onto the Internet, including embarrassing racist emails by Sony execs mocking Obama, salary details of big stars and silly things about how bad Adam Sandler movies are. The initial hacks included nothing specific about “The Interview.” American mainstream media feasted on the dumped gossip, ensuring any embarrassment to Sony reached a worldwide audience. The FBI stated the hacks were not committed by North Korea (a suspect given the topic of Sony’s film) and DHS dismissed threats someone claiming to be the hackers made later against theatres that would show the film at Christmas. “The Interview” had its premiere in Hollywood and was shown in many locations as part of the usual media preview PR campaign. Nothing violent happened.
Oops! Major theatre chains decided on their own to not show the film. Sony pulled the film from distribution, a business decision, albeit a lame and weak one.
Then, in some sort of chum-churning all-American exercise (following the release of the Senate torture report — coincidence!) blame for the Sony hack was re-directed squarely at North Korea not only by the revised FBI, but by the President of the United States himself. This in spite of fairly weak explanations from the FBI about why the hacks seemed to come from North Korea, and fairly robust explanations from the tech media explaining why the hacks did not seem to come from North Korea.
The President vowed revenge on the North Koreans for what had morphed overnight from just another example of corporate hacking into a literal act of war, the first shots in the endless cyberwar the Pentagon had been
hoping for predicting for years. It was on! And Americans rose to the bait, fueled by a growing media hysteria over… free speech?
The First Amendment of the Constitution makes clear the government is not allowed to restrict speech: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The concept of free speech in the Bill of Rights is directed at OUR government stopping us, not whether or not some other government wants to stop us.
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
“Free Speech” in our Constitutional context is speaking truth to our own government and society, not imagining you are flipping off Kim Jong Un.
What the faux-patriots ignore is that what Sony and the theatre chains did and did not do is far short of the ideals of “free speech” and much closer to the bowels of cold, hard business decisions. Sony’s and the theatre chains’ lawyers very likely decided that showing the film in light of weak threats would open them to liability should some nut case have done something, and/or that the weak threats would have scared moviegoers off anyway and they wouldn’t have made any money. That’s it. Cash.
The true patriotic exercise of free speech is not masking a business decision as a principled stand. It is not recycling some old jingoistic songs in front of a sympathetic group of beer drinkers. You want courage? Say something unpopular against the government. Blow the whistle at great personal risk on a wrong that needs to be exposed. March in protest at risk of a police beating or arrest.
By all means, go see any movie you want, and have fun (reviews suggest the Seth Rogen character hides an explosive device in his own butt in one scene from The Interview). But don’t conflate that with acts of true patriotism and the exercise of free speech.
Hmm. They must be using a different version in Georgia, where a small town has used some odd twists on traffic laws to violate the First Amendment’s right to practice one’s religion, banning a mosque from opening. All together now — Freedumb!
Kennesaw, Georgia, a pus-filled, hateful ashtray of a city of about 30,000 people in north Georgia, voted down a Muslim group’s request to rent an unused retail space and open a mosque in the city.
The vote was 4-1 against as anti-Muslim protesters stood outside the meeting with signs such as “Ban Islam” and “Islam Wants No Peace!”
Mayor Mark Matthews forbade comment inside from the public about religion, so critics instead said they opposed the mosque on the grounds parking. This despite the fact that the Muslim group had already agreed to limit attendance to 80 worshipers at a time in the 2,200 square foot space. The group also agreed to build 40 new parking spaces well-away from the nearby shopping area.
The clever haters in Georgia figured they would get around that naughty old First Amendment to the Constitution (Note: the Constitution is that thingie that defines the freedom our troops are always fighting Muslims overseas to protect) by not, no sir, not in any way at all, making the mosque ban about religion. Nope. All the good white people of Kennesaw are concerned about is traffic issues in what no doubt is their busy and thriving downtown area.
“This is not intended to be a religious debate or a discussion about people’s religious beliefs. It’s a purely technical hearing on the appropriate land use for a piece of property in the city of Kennesaw,” the mayor said.
Oh wait, that’s bullsh*t.
At a public hearing last month that had no limits imposed on discussing religion, Kennesaw residents shared things like this: “I am first a Christian and then an American citizen,” resident Jo Talley said. “As a Christian I am to put no other God before my Lord, and I am also to love my neighbor. If you know me, then you know that I do my best to do those things… but I also have the right to protect myself. This project has to do with Sharia law.”
“You know, if Christianity were killing people, I’m pretty sure I would have a problem with it,” Pastor C.S. Clarke of the Redeemed Christian Fellowship Church added.
Ashley Haspel, who owns a beauty salon, said she is concerned people attending the mosque would use too many parking places, leaving no room for her customers. “A worship center has no place being in a retail center… It would hurt our business not having the parking for our customers.”
According to the application for the mosque, the daily prayer services would likely be attended by 10-20 people and the weekly prayer service 60-80 people. There are already 127 parking space, which would increase to 167 if the mosque is approved.
Resident Anthony Bonner said the debate was “bigger than just zoning and parking. This is bigger than right and wrong. This is not a religious debate. This is about a comment on the value and the merits of a community.”
A commenter added “Islam is a discriminatory religion so it is quite ironic to hear all the supporters of the mosque crying about discrimination.”
Here’s one: “Should we accommodate a religion aiming to convert or kill the infidel, including the citizens of the United States? Islam is NOT a peaceful religion based on love. Should we aid the enemy?”
An upstanding citizen stated “The scumbag lawyer for the terrorist organization says he will sue… good luck with that.”
Another says on video “A retail space is not appropriate to a house of worship,” though by some odd quirk, the city allowed a Pentecostal church to rent a retail space for exactly the same purpose in July.
As some readers may know, I am former employee of the Department of State, and after publishing a book critical of State’s efforts in the previous Iraq War We Meant Well, I was subjected to a year of legal battles, including threat of prosecution.
But standing up for your rights is a part of having those rights. A free society is based on a marketplace of ideas, that free speech thing we all learned about in civics class. We all need to hear from all sides to become the “informed citizenry” that Thomas Jefferson said was so essential to a democracy. And who better to enlighten the public about how their government really works than former federal employees, the people who were on the inside, now private citizens?
It would be wrong then for a former employer, as codified into its agency regulations, to expect its retirees to “refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.” But that is exactly what the U.S. Department of State does.
They even wrote it down, stating (emphasis added):
Former employees are expected to refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.
Former employees are encouraged to make public appearances and write manuscripts for unofficial publication which constructively contribute to the interests and objectives of the Department of State and the Government.
So let’s get this straight. Private citizens, who happened to once work for the State Department in some capacity, perhaps not even one directly connected to policy issues, are expected to not say anything in a public forum against the interests of the United States? And they are encouraged to say things that contribute to the objectives of the Department of State? Just ’cause?
Though this all smacks of some sort of Orwellian attempt to coerce, er, expect, a class of private citizens to propagandize, um, engage in activities, that use their authority and reputation as former State Department employee to promote only the side of a discussion that supports the government’s position, I’ll play along. I have to right, as a Good Citizen?
But I think the problem will be in how the State Department and I might differ on just what the “interests and objectives of the Department of State and the Government” are that I am told because I once worked there I must support.
But let’s start with something we can agree on. The State Department’s Mission Statement says in part that the agency should seek to “Shape and sustain a… democratic world.” I agree.
But I disagree that admonishments to spew the government line as a private citizen, as State wants, contribute to that goal. Instead, I believe that exercising my First Amendment rights as a private citizen contribute much to democracy. Any exercise of rights strengthens a democracy, the same as any attacks on those rights diminish it. Bleating out the party line is for countries ruled by parties. Did you know that North Korea’s interests and objectives include claiming Kim Il Sung invented the television? I guess their former employees are encouraged and expected to write nice things in comments on YouTube and stuff about that.
Welcome to another episode of Post-Constitutional America, where the old rules do not apply. See something, say something, unless you used to work for the State Department and what you say does not agree with the government’s version of things.
But oh! Some feel that is too much, too dramatic. Fair enough. The whole problem is not that State can ever enforce these rules– they can’t– it is that they exist as a testament to how they think. It’s that whole idea of “loyalty” above all else, and of course the hypocrisy of saying how important dissent is while trying very hard to stifle it. At the end of the day such things erode employees. So many just kind of give up and stop caring too much about what they do and just glide through the motions.
BONUS: The same section of regulation quoted above also says “The State Department will be glad to furnish, upon request, advice, assistance, and copies of printed publications to former employees who wish to obtain information on particular subjects.” Or not. I have asked State for comment and “advice” on these regulations and have not received any response.
FYI: State has not contacted me personally about anything I have written. This article is based on State’s regulations. Whether currently enforced in some way or not, their existence is reason enough to call out.
You see, Ray just beat down, in court, Hillary Clinton, the State Department, and a small part of Post-Constitutional America.
Who is this Guy?
McGovern is a changed man. He started out in the Army, then he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief. He was a hell of a spy. McGovern began to see the evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.
Ray McGovern was put on the State Department’s Diplomatic Security BOLO list– Be On the Look Out– one of a series of proliferating government watch lists. What McGovern did to end up on Diplomatic Security’s dangerous persons list and how he got off the list are a tale of our era, Post-Constitutional America.
Offending the Queen
Ray’s offense was to turn his back on Hillary Clinton, literally.
In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed from the side by a man whose name is redacted from public records. Photos (above) of the then-71 year old McGovern taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.
The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.
But because he had spoken back to power, State’s Diplomatic Security printed up an actual wanted poster citing McGovern’s “considerable amount of political activism” and “significant notoriety in the national media.” Diplomatic Security warned agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.” The poster itself was classified as Sensitive but Unclassified (SBU), one of the multitude of pseudo-secret categories created following 9/11.
Violations of the First and Fourth Amendments by State
Subjects of BOLO alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert is a standing directive that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. These directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure, as well as the First Amendment’s right to free speech, as the stops typically occur around protests.
You Don’t Mess with Ray
Ray McGovern is not the kind of guy to be stopped and frisked based State Department retaliation for exercising his First Amendment rights in Post-Constitution America. He sued, and won.
The Partnership for Civil Justice Fund took up the case pro bono on Ray’s behalf, suing the State Department. They first had to file a Freedom of Information Act demand to even get ahold of the internal State Department justifications for the BOLO, learning that despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State went on to open an investigation into McGovern, including his political beliefs, activities, statements and associations.
The investigative report noted “McGovern does seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” It also cited McGovern’s “political activism, primarily anti-war.” The investigation ran nearly seven months, and resulted in the BOLO.
With the documents that so clearly crossed the First Amendment now in hand, the Partnership for Civil Justice Fund went to court. They sought, and won, an injunction against the State Department to stop the Be On the Look-Out alert against McGovern, and to force State to pro-actively advise other law enforcement agencies that it no longer stands.
McGovern’s constitutional rights lawsuit against George Washington University, where his arrest during the Clinton speech took place, and the officers who assaulted and arrested him, is ongoing.
Watch Lists in Post-Constitutional America
McGovern’s case has many touch points to the general state of affairs of post-9/11 government watchlists, such as No-Fly.
The first is that it is anonymous interests, within a vast array of government agencies, that put you on some list. You may not know what you did to be “nominated,” and you may not even know you are on a list until you are denied boarding or stopped and frisked at a public event. Placement on some watchlist is done without regard to– and often in overt conflict with– your Constitutional rights. Placement on a list rarely has anything to do with having committed any actual crime; it is based on the government’s supposition that you are a potential threat, that you may commit a crime despite there being no evidence that you are planning one.
Once you are on one watchlist, your name proliferates onto other lists. Getting access to the information you need to fight back is not easy, and typically requires legal help and a Freedom of Information Act struggle just to get the information you need to go forward. The government will fight your efforts, and require you to go through a lengthy and potentially expensive court battle.
We’ll address the irony that the government uses taxpaying citizens’ money to defend itself when it violates the Constitutional rights of taxpaying citizens another time.
Donating to The Partnership for Civil Justice Fund
Persons wishing to donate to The Partnership for Civil Justice Fund may do so online. I have no affiliation with the organization and do not benefit in any way from donations.
Full Discloure: I do know and respect Ray McGovern, and was once the subject of a State Department Be On the Lookout Alert myself, following these remarks I made about Hillarly Clinton. I have been unable to ascertain the status of my own BOLO alert but believe it is no longer in force. The State Department refuses to disclose any information to me about my status.
Nydia Tisdale is a citizen journalist in Georgia. She does not get paid for her work, but instead sees it as a civic duty to record politicians and the political process, and then upload those videos to YouTube. What she does is in large part what democracy is all about– involved, informed citizens exercising their rights under the First Amendment.
Not in Georgia.
Tisdale’s day began with a speech by state Insurance Commissioner Ralph Hudgens, who in his talk described the debate performance of a Democratic rival as lousy enough that “I thought I was going to absolutely puke.”
The crowd was laughing at the insult when Hudgens interrupted, looking down from the podium at Tisdale, seated near the state’s governor. Hudgens said “I don’t know why you’re videotaping.” Another pol, a local attorney and former GOP chairman, and one of the event’s organizers, demanded Tisdale stop videotaping. She refused. The cops were called to arrest and remove her.
Yes, it got worse.
At some point, with Tisdale loudly stating her rights were being violated, one of the arresting cops allegedly pressed his groin into Tisdale’s backside, bending her over a counter, because that’s how it’s done in Georgia. Tisdale would eventually be charged with trespassing, a misdemeanor, and obstructing an officer “by elbowing him in the right cheek area and kicking him in the right shin.”
Linda Clary Umberger, chairwoman of the Dawson County GOP, followed the citizen journalist and the officer to an outbuilding. “I watched as a woman was bent over the counter on her face, with an officer over her,” Umberger said. “If I had been her, I would have elbowed him in the face, too. “I was so upset at how they handled it – I walked out.”
The state governor apparently sat in silence while the violation of civil rights took place in front of him. Because that’s how it’s done in Georgia.
“Let me be possibly politically incorrect here a second,” a later speaker, the state’s attorney general finally told the crowd. “If we stand for anything as a party, what are we afraid of with the lady having a camera, filming us? What are we saying here that shouldn’t be on film?
“What message are we sending? That because it’s private property, they shouldn’t be filming? What is the harm? Who’s the winner in the long run? Not a good move. The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”
Georgia still isn’t done harassing Tisdale.
Though she was released on bond, her camera, supposedly seized as “evidence,” remains locked up, because that’s how it’s done in Georgia. “I can’t work without it,” she said.
This is not Tisdale’s first time to run into unfair practices in Georgia. In 2012, the mayor of Cumming, Georgia, ejected Tisdale from an open city council meeting simply for videotaping the proceedings. A judge later signed an order laying a $12,000 fine on the city and mayor for violating the state’s open meetings law, never mind the Constitution of the United States, assuming that document still applies in Georgia.
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“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.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
The Passion of Ray McGovern
Ray McGovern is a hell of a guy. An Army veteran, he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief and other important stuff. Along the way, McGovern began to see the fraud and evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.
McGovern is also a very nice person, soft-spoken, serious, kinda looks like your uncle playing Santa Claus, full of fascinating Cold War history. I’ve had the pleasure of meeting Ray. He’s the kind of guy you meet and like almost immediately. I bet he was a hell of a spy.
A Wanted Man
Ray McGovern is also on the State Department’s BOLO list– Be On the Look Out– one of a series of government watch lists.
The old-timey wanted poster State’s Diplomatic Security printed up cites McGovern’s “considerable amount of political activism” and “significant notoriety in the national media” as if those points were somehow relevant to his inclusion on the watch list. Though McGovern is a thin man, age 75 with no history of violence, Diplomatic Security warns that its agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.”
A Dangerous Man
What did McGovern do to end up on Diplomatic Security’s dangerous persons list? His offense was to turn his back on Hillary Clinton, literally.
In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed by a from the side by a third man whose name was redacted from public records of the event. Photos of the then-71 year old man taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.
The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.
And one more thing: the speech Clinton was making at the time of McGovern’s protest and arrest? She was condemning authoritarian governments who repress dissenters and internet freedom. As McGovern was being dragged out, Clinton stated that “The government does not want the world to watch,” in reference to Egypt, not her America as unfolding before her eyes. Clinton did not acknowledge the arrest, never broke character as it happened.
An Enemy of the State
In old-timey America, that might have been the end of McGovern’s troubles. However, in our post-Constitutional America, it was only the beginning.
Despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State then opened an investigation into McGovern, including his political beliefs, activities, statements and associations. The investigative report noted “McGovern does
seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” The investigation ran nearly seven months, and resulted in the Be On The Lookout Alert.
Subjects of such alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert essentially constitutes a standing directive by Diplomatic Security that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. It is easy to see how these directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure.
Subjects are also not allowed inside any State Department facility, including embassies and consulates abroad where typical Americans are by treaty allowed to seek refuge and protection. But not for Ray McGovern.
McGovern v. John Kerry
As we’ve said, McGovern is no typical guy. On February 15 he filed a lawsuit against Secretary of State John Kerry and his State Department, as well as George Washington University where the arrest took place, claiming his First Amendment rights were violated by unlawful police misconduct in retaliation for his act of protest. He also is suing over violation of his Fourth Amendment rights due to excessive use of force and his wrongful arrest. McGovern seeks injunctive relief prohibiting the State Department from directing law enforcement stop and question him on sight.
We’ll keep track of the lawsuit and report on its progress.
Why I Know So Much about BOLO Alerts
Information reluctantly made available to me as the State Department sought to persecute, prosecute and /or fire me for my whistleblowing book, We Meant Well, showed that I too was and may still be subject to a Diplomatic Security alert.
After a blog post I wrote in 2011 that was deemed insulting to then-Secretary of State Clinton, and after over two decades of public service, my State Department access card was impounded, I was marched out of the building and I was given a letter stating I was prohibited from entering any State Department facility, domestic or abroad. When a bit of necessary bureaucratic business came up a week or two later, I was told that I could only enter the State Department building as far as the public lobby, where I would be met by the appropriate Human Resources person in the presence of security personnel.
State later was forced to reveal that not only was I placed on its own Diplomatic Security watch list, but also on the Secret Service’s watch list, as they share responsibility for Clinton’s security as a former First Lady. McGovern may want to check on that.
My lawyers sought to have State remove me from the lists. State refused to confirm or deny my continued presence on the lists. State did not respond to my several requests for this information under the Freedom of Information Act.
Diplomatic Security knew of course I was no threat to anyone. I’m a fat old guy, short, and had a clean track record inside the Department since the 1980’s. Same for Ray McGovern; the cops that mistreated and arrested him for standing silently knew damn well he was neither disrupting anything nor a threat. They knew exactly what the First and Fourth Amendments said.
And they didn’t care.
This is what post-Constitutional America is about. The government, from major issues such as extrajudicial drone killings down to the pettiness which preoccupies the bullies in places like Diplomatic Security, no longer cares whether its actions are legal, and no longer cares if everyone knows it.
From the Founders forward, government has always done illegal things, naughty things, things that it knew were likely unconstitutional. What is new is that the acts have scaled up significantly, moving from analog to digital, and that the government is so sure that neither the courts nor the People will object that they no longer even go through the motions of hiding what they do.
Remember, both the Stasi and the Nazis did what they did quite openly, and kept excellent records.
Not to brag (OK, I’m bragging) but I am invited to the Playboy Mansion on May 22 to attend the Hugh Hefner First Amendment Awards. It is as good a place as any to hang out while one of this year’s award winners, Colonel Morris Davis, waits (and waits…) for justice as he struggles to protect his and our right to speak out against the government.
Morris Davis v. Thomas Jefferson?
Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.
Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)
Justice Postponed is Justice Denied
Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done. At about the same time in 2011 that Colonel Davis notified the government that he was going to be called as a defense witness for Bradley Manning, the Department of Justice filed a motion to dismiss Davis’ lawsuit against the government, actually seeking to make him pay the government’s court costs, and hinted at potential criminal charges because he copied some unclassified files from his office computer. Of course three years had passed since these alleged 2010 criminal acts and DOJ’s 2013 threats, so perhaps the timing was coincidence, but Colonel Davis said in an interview with me that he believes it was an attempt to discredit him and thus negate any help he could offer Manning.
Despite DOJ’s clumsy efforts, the good news is that at a hearing about a month ago a federal judge denied the government’s stalling motion and the case is moving “forward” again. However, DOJ is again seeking to stall things with multiple delaying motions that require multiple responses, and the motions alone won’t be heard by a court until August. After that comes a lengthy discovery period that will likely take the case to the four year mark. Colonel Davis hopes he’ll get to trial before the five year point. He is a strong man, navigating more successfully between the empowering anger and the consuming bitterness than most people struggling against the government of the United States can manage. Still, it is hard for him to rationalize the amount of time and effort his own government is spending to limit the free speech rights of federal employees.
Hugh M. Hefner First Amendment Awards
The government’s ability to limit free speech, to stopper the First Amendment, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on. In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in. All that stands in counter to the government’s actions is the First Amendment, exactly as the Founders designed it to be.
The Hugh M. Hefner First Amendment Awards were established in 1979 to honor individuals who make significant contributions to protect First Amendment rights for Americans. Since the inception of the awards, more than 100 individuals including high school students, lawyers, librarians, journalists and educators have been honored. I am very proud that two of last year’s winners, whistleblowers Tom Drake and Jesselyn Radack, are my friends, and that Radack helped defend my right to speak against the Department of State.
So congratulations to Colonel Davis. He earned this award and I’ll be proud to watch him receive it from Christie Hefner on May 22. He is in good company, as Daniel Ellsberg, the Vietnam War era’s version of Bradley Manning, is also being honored. By standing up against a government that is doing wrong, and seeking to bring those wrongs into daylight, both men have earned the privilege to be called patriots. All that said, it is an odd state of things. The only mainstream introspection of the government takes place on Comedy Central. Of all the possible ways I dreamed of getting into the Playboy Mansion over the years, this was not one of them. Nasty business, fighting for one’s First Amendment rights these days. Strange times make for strange bedfellows, even at the Playboy Mansion.