Blog on the Run: Reloaded

Thursday, June 30, 2011 8:10 pm

Because if you don’t stop it, the next time it will be even worse

During the Bush era, I raised hell here about violations of law and the Constitution by the administration, for which I had my intelligence, sanity, patriotism and sexual proclivities questioned. On the good days.

And I did it for a reason: History suggests that if violations of the law by government are not punished severely, those violations will not only continue but worsen. And American history suggests that party affiliation is no guarantor of government legality.

We’ve watched that pattern play out again during the Obama administration. Although Obama campaigned (to some extent) against the criminal violations of the Bush national-security state, he’s continuing some of those same practices now that he is the one with the power. I warned of this behavior early in his tenure, and I’ve long since reached my breaking point. But the pattern is worsening, as Fecund Stench notes in this brief but telling roundup:

From Conor Friedersdorf at The Atlantic:

In Barack Obama’s rise to national prominence, when he criticized the Bush Administration for its false claims about WMDs in Iraq, its torture of detainees, and its illegal program of spying on American citizens without warrants, he owed a particular debt of gratitude to a New York Times national security reporter. In a series of scoops as impressive as any amassed during the War on Terrorism, James Risen reported in 2004 that the CIA failed to tell President Bush about relatives of Iraqi scientists who swore that the country had abandoned its weapons program; the same year, he was first to reveal that the CIA was waterboarding detainees in Iraq; and in 2005, he broke the Pulitzer Prize winning story about the secret NSA spying program.

These scoops so embarrassed and angered the Bush Administration that some of its senior members wanted Risen to end up in jail. They never managed to make that happen. But President Obama might. He once found obvious value in Risen’s investigative journalism. Its work that would’ve been impossible to produce without confidential sources and an ability to credibly promise that he’d never reveal their identities. But no matter. The Obama Administration is now demanding that Risen reveal his source for a 2006 scoop about CIA missteps in Iran. If he refuses to cooperate, which is his plan, he faces the possibility of jail time.

From Glenn Greenwald at Salon, last week:

The subpoena to Risen was originally issued but then abandoned by the Bush administration, and then revitalized by Obama lawyers. It is part of the prosecution of Jeffrey Sterling, a former CIA agent whom the DOJ accuses of leaking to Risen the story of a severely botched agency plot — from 11 years ago — to infiltrate Iran’s nuclear program, a story Risen wrote about six years after the fact in his 2006 best-selling book, State of War. The DOJ wants to force Risen to testify under oath about whether Sterling was his source…

What’s particularly striking about this prosecution is that it involves digging deep into the ancient past (the Iran operation in question was begun under the Clinton administration): this from a President who insisted that Bush officials not be investigated for their crimes on the ground that we must “Look Forward, Not Backward.” But it’s not hard to see why Obama officials are so intent on doing so: few things are more effective in creating a Climate of Fear — one that deters investigation and disclosure and stifles the exercise of basic rights — than prosecuting prominent people for having challenged and undermined the government’s agenda. As Risen documents, that — plainly — is what this prosecution and the Obama administration’s broader anti-whistleblower war is about: chilling the exercise of basic rights and the ability to challenge government actions.

From David K. Shipler at the NYT, last week:

THIS spring was a rough season for the Fourth Amendment. The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime.

I’ll be honest: I’m scared. Once these freedoms go, they’ll be difficult, if not impossible, to get back. Once the precedents have been established that criminal violations of the law and violations of the Constitution by our government will go not just unpunished but, if possible, unrecorded, we have entered a long, dark tunnel at the end of which no light is visible.

If you’re content to live in Guatemala with a bigger economy, fine. I’ve always hoped for better.

Tuesday, June 14, 2011 8:40 pm

Your home: SO not your castle

I don’t know what’s more bothersome about this recent Indiana Supreme Court decision, the fact that it “violates the Fourth Amendment against illegal searches and centuries of common law precedent regarding homeowners’ rights” or that it is “bringing Indiana in line with most other states”:

INDIANAPOLIS — A public defender has asked the Indiana Supreme Court to rehear a case she lost when the court ruled homeowners should not resist police officers who illegally enter their homes, a decision bringing Indiana in line with most other states but met here with widespread disapproval.

Vanderburgh County public defender Erin Berger filed a petition with the court seeking a rehearing, court spokeswoman Kathryn Dolan said Friday. Berger’s client, Richard Barnes, was convicted of resisting law enforcement for shoving a police officer who tried to enter his home after he told the officer he could not enter.

Critics argue the court’s 3-2 ruling upholding Barnes’ conviction violates the Fourth Amendment against illegal searches and centuries of common law precedent regarding homeowners’ rights. Some have called for the removal of Justice Steven David, who wrote the decision and faces a November 2012 retention vote following his appointment to the high court last year by Gov. Mitch Daniels.

“The ruling on its face appears to give police officers unfettered rights to enter any residence, for any reason, and dispenses with the occupant’s Fourth Amendment rights,” Berger wrote in her petition filed Thursday.

Indiana Attorney General Greg Zoeller, for whose office the court’s ruling marked a victory, also has said the case should be reheard “to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry.” But Zoeller said the court still should uphold Barnes’ 2007 convictions for resisting, disorderly conduct and battery on a law enforcement officer, all misdemeanors.

Freedom. I miss it so.

Tuesday, December 14, 2010 8:31 pm

We’re not a complete dictatorship. Yet.

Filed under: I want my country back. — Lex @ 8:31 pm
Tags: , ,

One bit of good news that escaped my notice earlier: The 6th U.S. Circuit Court of Appeals has ruled in U.S. v. Warshak that if the government wants to read somebody’s e-mail, it needs to get a damn warrant. Orin Kerr at Volokh writes that three previous, similar 2-1 appeals-court panel rulings have been overturned or withdrawn on other grounds, but he outlines reasons why he thinks this one is likely to “stick around.” (He has written previously on related issues here.)

So, one for the good guys.

Tuesday, September 28, 2010 8:06 pm

Why Obama shouldn’t be your back-door man (and neither should anyone else in government)

Filed under: I want my country back. — Lex @ 8:06 pm
Tags: , ,

The government’s proposal to create a “back door” to give law enforcement easier access to encrypted messaging systems like BlackBerry and Skype is both bad security and bad business, mistermix at Balloon Juice writes:

It’s bad business because it opens the doors to companies that aren’t governed by US law to create competing solutions and sell them in places where US law doesn’t apply. BlackBerry may buckle under and allow a back door to remain a player in the US market, but some other player could well create a smartphone messaging system that doesn’t have a back door and sell it in the parts of the world that don’t give a shit about US law. And other companies may create smartphone software (apps) that run on top of your iPhone or BlackBerry’s phone or messaging apps to encrypt voice and text traffic, but those companies will be headquartered (and employ engineers) somewhere beyond Eric Holder’s reach.

It’s bad security because a back door is an opening that can be breached by hackers as well as law enforcement, and the existence of a back door makes the system that has one an immediate target of hackers.RIM, the maker of BlackBerry, may not care about your civil rights, but they sure as hell don’t want to be the target of a hack that leverages a back door that they put in to satisfy the US, UAE and India.

Then there’s that whole pesky Fourth Amendment thingie.

Saturday, September 11, 2010 3:34 pm

Remembering what we lost on 9/11 — and what we threw away thereafter

Filed under: I want my country back. — Lex @ 3:34 pm
Tags: ,

On most anniversaries of the terrorist attacks on the Twin Towers and the Pentagon and Flight 77, I have been much more about sorrow than anger.

Not today. Today I’m pissed.

A recent confluence of events is emerging into a mosaic that depicts the destruction of some of what’s most valuable about America. Our Fourth Amendment in particular, and many of our essential rights in general, are under attack by our own government at all levels by officials of both major parties.

This not only could have been avoided, it should have been. But as a country, we panicked; constitutionally speaking, we filled our pants. Worse, and even less defensibly, some who didn’t panic sought to exploit the fears of those who did and, disregarding Benjamin Franklin’s timeless warningThey who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety –we let them get away with it.

Consider:

  • After the government’s surveillance abuses of mid-century, Congress enacted the Foreign Intelligence Surveillance Act. Amended several times thereafter, the provision provided a constitutional avenue for us to keep an eye on friend and adversary alike while protecting the rights of U.S. persons at home and abroad. Just as important, it established both civil and criminal penalties for violations of the rights of U.S. citizens. But when The New York Times disclosed serial violations of the act by the Bush Administration, neither Congress nor the Justice Department took any action. Worse, Congress, including then-Sen. Barack Obama, granted retroactive immunity to the telecommunications companies that had cooperated with the government’s illegal surveillance of U.S. persons.
  • The Electronic Communications Privacy Act hasn’t been updated since 1986 and currently leaves our privacy vulnerable.
  • The 9th U.S. Circuit Court of Appeals recently approved police putting GPS tracking devices on suspects’ cars without a warrant.
  • Police are buying the same body scanners used in airports to use for searching people on the street … without a warrant or probable cause.
  • Here in North Carolina, the N.C. Sheriffs’ Association is seeking access to the state’s prescription-drug database — without a search warrant.
  • The widespread and growing use of National Security Lettersadministrative subpoenas (that is, subpoenas issued directly by an executive-branch government agency without judicial-branch review or oversight) that also typically include a gag order forbidding the subject from discussing the letter/case.

I could go on, but you get the picture: The three branches of the federal government are colluding with weak, unscrupulous and/or uninformed citizens to gut the Fourth Amendment by ignoring the plain meaning of the text:

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 short, if you want a search, get a warrant, and if you want a warrant, you provide probable cause to believe a crime has been committed, and you swear to that probable cause on penalty of perjury, and you explain exactly what it is you’re looking for — no fishing expeditions allowed. Memo to our courts: Where are the strict constructionists when we need them?

This is a basic and easy-to-understand rule. In fact, it has been under assault for most of the country’s history by law-enforcement officers who cheerfully perjured themselves, swearing to things “upon information and belief” when lacking the former and lacking any basis for the latter, and never suffered legal consequences. More recently, however, it has been under assault by politicians who knew what they wanted to do and also knew that what they wanted to do was unconstitutional by the plain meaning of the Fourth Amendment, so they set up NSLs and the like as a kind of legal window dressing or fig leaf. And illiterate and/or dishonest judges have let them do it.

This must stop, and I can think of no better tribute to the Americans of all races, faiths and political orientations who died in the terror attacks of 9/11 than to start rolling back the destruction of our rights, particularly our Fourth Amendment rights, that began in their name the minute they could no longer speak for themselves.

You don’t have to burn a copy of the USA Patriot Act, although frankly, I like the symbolism. Holding your elected officials accountable would be a start. And I don’t just mean voting out the ones who have done the wrong thing. I mean impeaching them for violating their oaths of office to uphold the Constitution.

Friday, August 27, 2010 8:59 pm

The rotating corpse of Thomas Jefferson is lighting a small New England town

For crying out loud. What part of “warrant” do you people not understand?

Law enforcement officers may secretly place a GPS device on a person’s car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.

Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers.

When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and latitude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court documents show.

Pineda-Moreno eventually pleaded guilty to conspiracy to grow marijuana, and is serving a 51-month sentence, according to his lawyer. …

The U.S. Ninth Circuit Court of Appeals rejected the appeal twice — in January of this year by a three-judge panel, and then again by the full court earlier this month. The judges who affirmed Pineda-Moreno’s conviction did so without comment. …

A federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant. Experts say the issue could eventually reach the U.S. Supreme Court.

Relatedly, you know those full-body scanners for use in airports? Law-enforcement agencies are buying them to use on the street … again, without warrants.

Let’s see if this subject comes up at the Glenn Beck rally …

Friday, November 20, 2009 11:09 pm

Freedom of assembly? Pshaw! That’s so 1787!

Filed under: We're so screwed — Lex @ 11:09 pm
Tags: ,

The U.S. Court of Appeals for the D.C. Circuit effectively overturns the assembly clause of the First Amendment as well as the Fourth Amendment freedom from arrest without probable cause.

It would be nice to think the Supremes will overrule, but I suspect Roberts, Alito, Thomas and Scalia will vote to uphold. I suspect Stevens, Breyer,  Ginsburg and Sotomayor will vote to overturn.

Anthony Kennedy, what say you?

Thursday, September 24, 2009 5:49 am

Taking the country back, step by step

Some good news to report on the pro-Constitution front.

There appears, finally, to be some strong sentiment in Congress against the overreach of the USA Patriot Act. And one of the leaders of that sentiment is Sen. Al Franken of Minnesota. Now, a lot of folks assumed that because Al Franken played a clown on TV, he’d act like one as a senator. I wondered, myself. But so far? Agree with his positions or not, he has acted quite senatorial. Yesterday, he gave a Constitutional dressing-down to administration lackey assistant attorney general David Kris, who was arguing in favor of reauthorizing the act, by reading the Fourth Amendment to him:

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part:  “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.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question.

No, it’s school, suckah, and class is in session. What’s surreal is that so many ostensibly intelligent people in positions of responsibility just one day decided to act as if the Fourth Amendment doesn’t say what it says.

Kris also took it in the teeth from Sen. Russ Feingold, who is a bit unhappy that the provision allowing for searches of suspects’ homes without their knowledge or permission — the so-called “sneak-and-peek” provision — has wandered well afield of its ostensible purpose:

Only three of the 763 “sneak-and-peek” requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases.

Sen. Russ Feingold (D-Wis.) quizzed Assistant Attorney General David Kris about the discrepancy at a hearing on the PATRIOT Act Wednesday. One might expect Kris to argue that there is a connection between drug trafficking and terrorism or that the administration is otherwise justified to use the authority by virtue of some other connection to terrorism.

He didn’t even try. “This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It’s for criminal cases. So I guess it’s not surprising to me that it applies in drug cases,” Kris said.

“As I recall it was in something called the USA PATRIOT Act,” Feingold quipped, “which was passed in a rush after an attack on 9/11 that had to do with terrorism — it didn’t have to do with regular, run-of-the-mill criminal cases. Let me tell you why I’m concerned about these numbers: That’s not how this was sold to the American people. It was sold as stated on DoJ’s website in 2005 as being necessary – quote – to conduct investigations without tipping off terrorists.”

Kris responded by saying that some courts had already granted the Justice Department authority to conduct sneak-and-peeks. But Feingold countered that the PATRIOT Act codified and expanded that authority — all under the guise of the war on terror.

Feingold, the lone vote against the PATRIOT Act when it was first passed, is introducing an amendment to curb its reach.

If authority can be misused, it will be. And when the misuse is tolerated, it only gets worse.

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