Watchlists and the Fourth Amendment

September 26, 2014

Tags: bolo, Diplomatic Security, First Amendment, Fourth Amendment, McGovern
Posted in: Democracy, Embassy/State, Post-Constitution America

If you don’t know Ray McGovern yet, you probably should.

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.

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