Showing posts with label Fourth Amendment. Show all posts
Showing posts with label Fourth Amendment. Show all posts

May 20, 2013

Support Fox News Washington Correspondent, James Rosen and Stephen Jin-Woo Kim

Is prior restraint from the Obama administration just around
the corner, are intimidation and persecution enough?
Zealous, careerist-minded US DoJ attorneys and the mindless continuation of the worst aspects of the War on Terror may bring down the legacy of another president, just as surely as the Vietnam War brought down Johnson and Nixon

The Washington Post has the sad story that the Fourth Amendment and First Amendment's guarantee of freedom of the press are imperiled in the United States, specifically in the case of Stephen Jin-Woo Kim, the U.S. DoJ, and the work of journalist, James Rosen.

The Kim/Rosen revelations follow the AP and seizure of phone records story.

From Mr. Kim's legal defense website, reads the statement from counsel, Abbe D. Lowell:

On August 27, 2010 the Justice Department and U.S. Attorney’s office charged Stephen Kim with illegally disclosing national defense information (classified information) to someone [Fox's James Rosen] in the media. The government has not alleged that Stephen gave away any document, that he was paid to do anything, that he stole the information, or that he acted in secret. It does not allege that Stephen was a spy or that he acted to assist an enemy of the United States. And, it does not allege that Stephen engaged in a pattern of misconduct. Rather, the case against Stephen Kim seems to be based on a prosecutor’s theory that Stephen talked to someone in the media about a topic of current events and – in that one and only conversation – disclosed classified information. It is a 'leak' case. Along with many who have commented, we think an unfounded one.
Notes Ann E. Marimow in The Post:

The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.
No one believes the Tea Party much cares about or understands constitutional rights. That's unfortunate.

Because what is happening under President Obama and Eric Holder's DoJ shows the depths to which the United States has fallen, now using the Espionage Act as its crusading, anti-terror tool in the administration's rapacious project against government leakers.

This is a scandal: Obama's war on whistleblowers.

Ask Bradley Manning. Or, as Eli Lake correctly characterizes this: "Obama's war on jounrnalism."

Writes Glenn Greewald in The Guardian:

But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen - the journalist - committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law. Describing an affidavit from FBI agent Reginald Reyes filed by the DOJ, the Post reports [emphasis added]:

"Reyes wrote that there was evidence Rosen had broken the law, 'at the very least, either as an aider, abettor and/or co-conspirator'. That fact distinguishes his case from the probe of the AP, in which the news organization is not the likely target. Using italics for emphasis, Reyes explained how Rosen allegedly used a 'covert communications plan' and quoted from an e-mail exchange between Rosen and Kim that seems to describe a secret system for passing along information. . . . However, it remains an open question whether it's ever illegal, given the First Amendment's protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so."
Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for "soliciting" the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.

May 14, 2013

White House Did Not Know of DoJ Secret Seizure of Associated Press Records

Attorney General John Mitchell [Correction: That's Eric Holder]
Update III: The attorney general seems to be proud of how little he knows about the AP and IRS scandals (though the IRS affair is no scandal), writes Milbank.

Update II: Holder says he recused himself from phone records seizure, begging the question who is running the U.S. DoJ. Greenwald calls the Justice Department's pursuit of AP's phone records both extreme and dangerous. Civil liberties groups and journalists blast the action.

Update: See Turley's Nixonian or Obamaesque? Obama Administration Spied on Associated Press Editors and Reporters

There came a man who did not know.

When President Obama nominated Eric Holder to serve as the 82nd attorney general of the United States in 2009, voters had every right to expect a jurist committed to the rule of law and protecting the liberties of American citizens.

As each story of DoJ prosecutorial misconduct appears amid the near abandonment of an activist U.S. Dept of Justice, Civil Rights division seeking out bad political players in protection of civil liberties, the latest revelation that the U.S. Justice Department secretly obtained the phone records of the Associated Press reporters and editors is more than troubling.

Wow, secretly obtaining records. How did the DoJ do that, one might wonder. Secret warrants?

As Buzzfeed's Ben Smith writes, "Less than four months into President Barack Obama’s second term, the hazy perception of a government reaching further and further into individuals’ lives in an era of broad new technological surveillance and power has turned into what may be the defining critique of his Administration."

Here's the Monday evening statement from White House Press Secretary Jay Carney (from The Atlantic, and not to be found on the White House site) explaining:

Other than press reports, we have no knowledge of any attempt by the Justice Department to seek phone records of the AP. We are not involved in decisions made in connection with criminal investigations, as those matters are handled independently by the Justice Department. Any questions about an ongoing criminal investigation should be directed to the Department of Justice.
Who knew defending the Fourth Amendment and being President was so difficult?

As noted in The Hill, not our president and not our attorney general.

"The AP believes the records seizure was related to a leak investigation regarding a 2012 story about the CIA foiling a bomb plot in Yemen. The Obama administration has aggressively investigated the disclosure of classified anti-terror information in recent years, subpoenaing journalists from the New York Times and Washington Post."

A leak? So, the DoJ is like plumbers ... fixing the leaks.

Notes Philip Bump: "In a letter of protest sent to Attorney General Eric Holder on Monday, AP President Gary Pruitt said there could be 'no possible justification for such an overbroad collection of the telephone communications.'"

Well, the Obama U.S. DoJ is better than a Romney-Ryan DoJ would be, I think.

Feb 3, 2013

National Biometric ID Card for 'Them' Is a Crazy Idea

Crazy at the Washington Post.

Its lead editorial today advocates techo papers, please.
An effective solution would be to issue tamper-proof, biometric ID cards — using fingerprints or a comparably unique identifier — to all citizens and legal residents. Last week, both President Obama and a bipartisan group of eight senators seeking immigration reform urged something along those lines, without calling it a universal national identity card. That’s a major step forward.

Jan 11, 2013

Stop-and-Frisk Violates Fourth Amendment, Fed Court Says

Being African-American and Latino doesn't mean you lose your Fourth Amendment rights.

That's the effect of an injunction issued by a New York federal court.

The case is: Jaenean Ligon et al v City of New York, U.S. District Court, Southern District of New York, (No. 12-cv-2274).

From Amy Goodman at Democracy Now:

A federal judge has ruled that New York City police are not allowed to routinely stop pedestrians outside of private residential buildings in the Bronx. The stops are part of the so-called Clean Halls program, which has prompted allegations of police harassment by some residents who say they are being accosted outside of the buildings in which they live. Previous data on the New York Police Department’s 'stop-and-frisk' policy has shown African-American and Latino men make up a hugely disproportionate share of those stopped.

Oct 7, 2012

Peace and Justice author wins fight to obtain FBI record

What's next?

Fourth Amendment rights for all?

Not likely. 

Matt Taibbi writes on Seth Rosenfeld's story and ordeal in attaining the state's documentation of what would be judged illegal FBI surveillance and harassment were the Fourth Amendment actually a working barrier against the lawless and often idiotic infringements against liberty our citizens have endured over the past several decades, continuing today.

Rosenfeld began his quest to get the University of California F.B.I. files in 1981, a full 30 years before the Occupy movement. He had no way of knowing that his epic fight to use the Freedom of Information law to release these documents — which succeeded only after four lengthy, exasperating lawsuits — would conclude just as America seemed to be entering another period of ’60s-style street tumult and divisiveness. ...

Rosenfeld’s decades of hard-fought research into the romanticized, rapidly receding past of the ’60s era produce a relevant warning. Domestic intelligence forces will tend to use all the powers they’re given (and even some that they’re not) to spy on people who are politically defenseless, irrelevant from a security standpoint and targeted for all the wrong reasons. And policemen who abuse their powers don’t just ruin innocent lives and undermine our faith in the law. They miss the real threats

Apr 21, 2012

Surveillance State

Sen. Frank Church (D-Idaho; 1957 to 1981)
 - When the Fourth Amendment Still Mattered

"Th[e] National Security Agency's] capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. [If a dictator ever took over, the N.S.A.] could enable it to impose total tyranny, and there would be no way to fight back."

By Glenn Greenwald

That dramatic warning comes not from an individual who is typically held up as a symbol of anti-government paranoia. Rather, it was issued by one of the most admired and influential politicians among American liberals in the last several decades: Frank Church of Idaho, the four-term U.S. Senator who served from 1957 to 1981.

Justice Lewis Powell, writing for a unanimous Court in 1972, denounced the Nixon administration’s electronic surveillance, warrantless-wiretapping program not just on Fourth Amendment grounds, but as a betrayal of the sovereign rights of citizens in a democracy to criticize their own government. "History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. ... The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society." - Justice Lewis Powell (UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)). One wonders if today's Supreme Court would vote to protect Fourth Amendment freedoms as did its predecessor of fourty years ago. We live in different times than we did during Nixon; and Bush and Obama are worse in some important civil liberties repsects. - mal contends

Sep 16, 2011

Unprecedented Surveillance in the United States

George W. Bush muttered in a press conference before the Iraq War invasion in 2003 that 9/11 proved America is now a battlefield, a ready excuse to launch a surveillance state matching that of the 10 combatant commands in the United States military. So the "homeland" is now a military-intelligence command with Americans as a target population.

Not yet repudiated by the Obama administration, the Bush-Cheney administration succeeded in consolidating an immense surveillance apparatus eviscerating the Fourth Amendment. [And let's ditch the "homeland" nonsense; we're not NAZI sympathizers.]

In 1972, a unanimous U.S. Supreme Court rejected such a state-terror complex as envisioned [crudely] by the Nixon administration which targeted Americans whom Nixon didn't like. In United States v. United States Dist. Ct., 407 U.S. 297 (1972), the Court ruled in defense of liberty:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
But Nixon was a piker compared to the neocons today. Does anyone believe we live with the same regard for liberty today as in the early 1970s?

As Dana Priest said in Frontline:
And so George Bush, for example, gave the CIA a billion dollars right off the bat, because the CIA was in the best position, not the military, to go after bin Laden and his followers in Afghanistan. And he gave them a billion dollars, and he also ordered the military to do whatever it took to support the CIA. …

They did the same thing with the NSA. Lots of money poured into the National Security Agency, which was the eavesdropper around the world. And they couldn’t grow fast enough. Not only were they asked to eavesdrop in many different places that they weren’t used to doing — not just capitals and not just leaders of countries, which is really what they were doing, mostly, prior to 9/11. They would want to know what a leader was saying or what an opposition group was saying. And they would report those conversations back.

They had to become more nimble and work at a lower level, because of course Osama bin Laden was not a leader, and the people who surrounded him did not live in palaces and didn’t visit embassies. So that agency grew very quickly as well.

And in order to grow quickly, because that’s what everyone was demanding, you couldn’t hire federal workers through this cumbersome federal-worker process. And not only that, but politically, people didn’t want to be seen as growing government. Members on the Hill, the Republican administration, nobody was in favor of growing the government.

So they actually made it much easier to hire outsiders, to hire contractors to work temporarily, than they did to hire federal workers. And that also remains a characteristic of what happens over the next 10 years, where any agency that wanted to grow quickly would go to the private sector, to corporations that saw an opportunity here to make a lot of money, to get into an area that no one was into yet, or very few players were into.

So you had this boom in the corporate intelligence world as well. Companies like CACI, big defense contractors, all of them — Lockheed Martin, General Dynamics, you name them, L-3, just all the old-fashioned, industrial, “We’re building ships and submarines”-type corporations quickly moved into the intelligence and information space, because this war was not a war that required a lot of tanks, a lot of fighter jets. It required information. And information flows in a different way and is analyzed by machines rather than, again, destroyers [that] are going to fire missiles.
In reaction, Ten Years Later: Surveillance in the "Homeland" is a collaborative project with Truthout and ACLU Massachusetts, deserving of the widest dissemination.

By Jason Leopold

Editor's Note: This report was originally published on The Public Record on July 16, 2009. We're reposting it as part of our efforts to highlight a decade of surveillance in the 'homeland.'

Back in 2001, the Defense Department was briefed about a massive data mining system that officials said was aimed at identifying alleged terrorists who lived and communicated with people in the United States.

The new intelligence program granted traditional law enforcement agencies as well as the FBI and the CIA the authority to conduct what was then referred to as “suspicionless surveillance” of American citizens.

“Suspicionless Surveillance” was developed by the Pentagon’s controversial Total Information Awareness department, led by Admiral John Poindexter, the former national security adviser who secretly sold weapons to Middle Eastern terrorists in 1980s during the Iran-Contra affair and was convicted of a felony for lying to Congress and destroying evidence. The convictions were later overturned on appeal.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, had referred to Poindexter as “the architect of a program to extend surveillance of private databases.”

Rotenberg said Poindexter was involved in a 1984 policy directive criticized by civil liberties groups and lawmakers who said it would hand the National Security Agency control over privately held information. The directive was voided with the passage of the 1987 Computer Security Act.

But in October 2001, Poindexter resurrected his government operated data-mining proposals. It was then that he introduced TIA to the Department of Defense, around the time Bush had signed an executive order authorizing domestic surveillance under a program known as the President’s Surveillance Program, according to a report issued last week by government watchdogs.

In the summer of 2002, a public outcry over the revelation that JetBlue Airways turned over the names and addresses of 1.5 million passengers to the Pentagon so the agency could create a database about Americans’ travel patterns, and also authorized the agency to monitor credit card transactions, led Congress to withhold tens of millions of dollars in funding for the project in early 2003.

But the program would have been able to continue to operate if President Bush believed that dismantling it would endanger national security, which former NSA officials familiar with the program said was the case.

The “suspicionless surveillance” program was somewhat different from the warrantless wiretaps President Bush secretly authorized the National Security Agency to conduct after 9/11. “Suspicionless surveillance” – unveiled in a Pentagon press release in 2002 – was broader in scope: it gave law enforcement the authority to mine commercial and other private data on American citizens, listening in on phone calls, monitoring emails, inspecting credit-card and bank transactions of thousands of individuals on the off-chance that one might be a terrorist – and all without any judicial oversight.

During a hearing before the House Intelligence Committee in April 2003, Kate Martin of the Center for National Security Studies, said, “There are two fundamentally different approaches that can be used to identify and locate dangerous individuals in the United States and their sources of financing.

“The approach, which has generated the most discussion, interest, and, apparently, resources is different forms of data-mining: the ‘suspicionless surveillance’ of large groups of people, whether through linking computerized databases, programs like Total Information Awareness, pattern analysis, the creation of a ‘terrorist profile,’ or surveillance of an entire group.”

But protests by civil liberty and privacy groups, as well as apprehension by Republican and Democratic lawmakers over what amounted to domestic spying, led Congress to shut down the surveillance program in 2003.

It now appears that shortly after Congress told the White House it was trampling on individual privacy rights with its “suspicionless surveillance,” several current and former NSA officials said in interviews, President Bush continued to secretly authorize the program.

Poindexter said in a resignation letter in September 2003 that his goal in developing the program was to identify “patterns of transactions that are indicative of terrorist planning and preparations.”

“We never contemplated spying and saving data on Americans,” Poindexter wrote in his resignation letter.

But that’s exactly what happened during the early stages of the program and, according to sources, continued after announcements were made that the program had been dismantled. The Bushadministration acknowledged that its aggressive campaign to unmask terrorists living in the US would be hindered if it were required to avoid spying on average American citizens.

Poindexter’s plan proposed to use state-of-the-art computer systems at the Army’s Intelligence and Security Command, headquartered at Fort Belvoir, Virginia, to secretly monitor emails, credit-card transactions, phone records and bank statements of hundreds of thousands of American citizens on the chance that they might be associated with, or sympathetic to, terrorists.

Poindexter, who was the director of the Information Awareness Office in the Defense Advanced Research Projects Agency, came up with the idea after 9/11 and discussed it over lunch with Defense Secretary Donald H. Rumsfeld, news reports said at the time.

Despite assurances that the federal government would not misuse the program, the JetBlue revelation proved that the administration was willing to sacrifice individual privacy rights in the name of national security. JetBlue officials said the airline was pressured by the Pentagon to hand over its private customer data to a Pentagon contractor named Torch Concepts. The contractor then bought demographic information on nearly half of the passengers from Acxicom, a marketing company. Torch then put together a study and posted it on the Internet.

In its report, Torch said that the government would have to monitor an unknown number of passengers to “find a needle in a haystack without knowing what the needle looks like.”

At least one lawmaker had raised concerns at the time that implementing such a program could be illegal.

Sen. Carl Levin, D-Michigan, told Rumsfeld during a public hearing in 2003 that the Total Information Awareness program “not only raises serious privacy concerns [but] might also be illegal and possibly unconstitutional.”

Report Critical of NSA Program

Last week, an unclassified report prepared by inspectors general of five federal agencies said George W. Bush justified his warrantless wiretapping by relying on Justice Department attorney John Yoo’s theories of unlimited presidential wartime powers, and started the spying operation even before Yoo issued a formal opinion, a government investigation discovered.

Essentially, President Bush took it upon himself to ignore the clear requirement of the 1978 Foreign Intelligence Surveillance Act that all domestic intelligence-related electronic spying must have a warrant from a secret federal court, not just presidential approval. Illegal wiretapping is a felony under federal law.

The July 10 report didn’t identify any specific terrorist attack that was thwarted by what was known as the President’s Surveillance Program (PSP), although Bush has claimed publicly that his warrantless wiretapping “helped detect and prevent terrorist attacks on our own country.”

The inspectors general ‘s report also makes clear that the full PSP was more expansive than the Terrorist Surveillance Program, the warrantless wiretapping that was revealed by the New York Times in December 2005. The TSP involved intercepting calls between the United States and overseas if one party was suspected of links to al-Qaeda or to an al-Qaeda-affiliated group.

Though the undisclosed elements of the PSP remain highly classified, the report gave some hints to its scope by noting that the program originated from a post-9/11 White House request to NSA Director Michael Hayden to consider “what he might do with more authority.”

Hayden then “put together information on what was operationally useful and technologically feasible,” the report said. “The information formed the basis for the PSP.”

In other words, the PSP stretched the limits of what the NSA could accomplish with its extraordinary capabilities to collect and analyze electronic communications around the world. Various journalistic accounts have suggested that Bush’s spying program crossed the line from zeroing in on specific surveillance targets to “data-mining” a broad spectrum of electronic communications.

Suggesting that the government gathered information on many innocent people, the inspectors general stated that “the collection activities pursued under the PSP … involved unprecedented collection activities. We believe the retention and use by IC [intelligence community] organizations of information collected under the PSP … should be carefully monitored.”

Surveillance now is everyone's business, as the line between intelligence-gathering and crimefighting rapidly fades and the public is conditioned to play its part.

The work of Deputy Police Chief Michael Downing of the Los Angeles Police Department (LAPD) exemplifies the new surveillance paradigm. The head of the 750-strong counterterrorism force within the LAPD, he is on the hunt for "people who follow al-Qaeda's goals and objectives and mission and ideology." He says his officers collect intelligence and practice the "essence of community policing" by reaching out to Muslims and asking them to "weed out" the "hard-core radicals."

He adds that he is pleased that many Muslims have adopted the LAPD's iWatch program and are prepared, along with the general public, to call in tips about suspicious activity. With "violent Islamists" as his main target, Chief Downing is also keeping track of "black separatists, white supremacist/sovereign citizen extremists and animal rights terrorists." If threats materialize, he can draw upon the LAPD's "amazing" backup capacity - SWAT units, direct-action teams, air support, counterassault teams and squads that specialize in disrupting vehicle bombs.

Here we see several of the components of the new surveillance society. A militarized police force no longer leaves intelligence work to federal authorities. It seeks out information about anything that can be connected to "suspicious" activity and is keeping track of certain individuals and groups whether or not there is evidence that they are engaging in criminal activity. Police are expected to chase down unsubstantiated tips from the public, and not just to pursue evidence of wrongdoing. A new notion of "community policing" has emerged, where monitoring communities - with all the trust issues that this implies - has taken the place of winning community support by being accountable to residents and solving crimes.

The LAPD is one of some 3,984 federal, state and local agencies now collecting information about "suspicious activity" that could be related to terrorism. The Washington Post's "Top Secret America" series states that 854,000 people now hold "top-secret" security clearance. We estimate that's about one for every 215 working-age Americans. An additional 3 million people reportedly hold "secret" security clearance.

The federal government spends more annually on civilian and military intelligence than the rest of the world put together - $80 billion is a conservative figure, according to the October 28, 2010, Post. This is in addition to the $42-plus billion allocated to the Department of Homeland Security (DHS) and the spending on intelligence activities by the LAPD and other state and local police forces. The homeland security industry is flourishing, with lucrative contracts being awarded to Lockheed Martin, Raytheon, Boeing, Northrop Grumman and other major defense contractors.

What exactly is being built with these funds?

The "Information Sharing Environment"

Essentially, the "total information awareness" assumption that the nation can be made safe by applying advanced technology to massive databases has been married to the call for a "unity of effort in sharing information" issued by the bipartisan 9/11 National Commission. The commissioners had recommended a fundamental change in how the nation's 16 intelligence agencies carried out their business. They urged that the "need to know" culture be replaced with a "need to share" imperative, with information being transmitted horizontally among agencies, not just vertically within agencies. They further recommended that the FBI be equipped to assume prime responsibility for domestic intelligence-gathering, that it incorporate a "specialized and integrated national security workforce," and that it form collaborative relationships with state and local police for this purpose.

To construct a new domestic surveillance network, theIntelligence Reform and Terrorism Prevention Act of 2004mandated the creation of an Information Sharing Environment (ISE) under the director of national intelligence. Defined as "an interrelated set of policies, processes and systems," ISE was intended to facilitate the sharing of terrorism-related information with stakeholders at all levels of government and the private sector. Eventually, foreign governments are supposed to be brought into the ISE loop. The ISE requires the standardization of information systems and technology to provide access to the burgeoning number of databases that serve as its connective tissue, the enlistment of mission partners across federal, state, local, and tribal agencies and the private sector to keep the databases supplied with the information that is its lifeblood, and the use of "analysts, operators and investigators" from "law enforcement, public safety, homeland security, intelligence, defense and foreign affairs" to extract, analyze and disseminate timely intelligence.

Fusion Centers and Suspicious Activity Reports

The nerve centers of the ISE are the nation's 72 regional and state fusion centers, which were in part a response to the FBI's reluctance to share threat information with state and local law enforcement because of turf and security clearance issues. With considerable variation in what they do and how they do it, fusion centers were established over the past seven years with DHS funding to "fuse" and analyze information from a wide variety of sources and databases and facilitate information-sharing among themselves through the FBI's eGuardian database. The secretive fusion centers represent a significant departure from traditional law enforcement objectives and methods, with few legal limits on what they can and cannot do, little respect for long-established jurisdictional boundaries between local, state, federal, military and private entities and a notable absence of accountability mechanisms. Given the scarcity of domestic terrorism plots, it is not surprising that most fusion centers almost immediately changed the focus of their data collection from fighting terrorism to a broad "all crimes, all hazards" mission. Many now use federal counterterrorism funds to collect, store and share data that has little or no relation to terrorism and, often, no relation to actual crimes.

According to DHS head Janet Napolitano, along with fusion centers, the Nationwide Suspicious Activity Reporting Initiativeserves as the "heart" of the government's effort to keep Americans safe from "homegrown terrorism." The idea behind the initiative is to collect as much data about anything "suspicious" that just may (or may not) be related to criminal activity. Or, to quote the government's own alarmingly broad definition: a Suspicious Activity Report (SAR) is "official documentation of observed behavior that may be indicative of intelligence gathering, or preoperational planning related to terrorism, criminal, or other illicit intention."

SARS programs, piloted by the LAPD, Boston and a handful of other cities, vary from place to place and are often in competition with one another for federal dollars. Today some 800,000 state and local law enforcement officers are encouraged to file SARs on even the most common everyday behaviors, such as looking through binoculars, taking pictures of buildings, taking notes in public and espousing "radical" beliefs.

The ISE program manager recommended that SARs are reviewed within the police department before being sent to a fusion center for further review by an intelligence analyst. If it "meets SAR criteria," it is then entered into the ISE for wide distribution and "fusion with other intelligence information." But a January 2010 evaluation of the ISE and National SAR Reporting Initiative has shown little uniformity in how SARs are being collected, vetted and shared, and how much personably identifiable information is being aggregated and disseminated through the fusion center network and sent to the FBI’seGUardian system, which is now serving as "an ISE/SAR shared space." In an effort to address criticisms voiced by civil liberties groups, ISE adopted a policy requiring that only behavior indicating some kind of connection to criminal activity or terrorism should be shared among federal intelligence agencies. But this civil rights protection does not apply to sharing by state and regional fusion centers.

A New Policing Paradigm

In addition to writing up SARS, police departments, often working directly with the FBI through its multi-agency Joint Terrorism Task Forces (JTTFs), sift "tips and leads" provided in field reports, through public tip lines, by private entities, by confidential and anonymous sources, or culled from media sources. Time that used to be spent investigating reasonable suspicion of criminal activity is now allocated to assessing randomly collected information to decide whether it is credible enough to be deposited in the Information Sharing Environment (ISE) and sent to the FBI’s eGuardian database for preliminary analysis before being sent to fusion centers for further analysis and wide distribution.

When local police work with the FBI in JTTFs, they become federal officers who are no longer under the supervision of and accountable to their local departments and communities, and instead must act in conformity with the FBI's guidelines on domestic investigations - regulations that are now so loose that they allow agents to conduct "assessments" involving monitoring of meetings and people, infiltration of groups, and personal interviews with no suspicion of wrongdoing - some 11,667 assessments were conducted just in the four-month period beginning in December 2009, with only a fraction leading to full investigations. And when local police participate with fusion centers in information collection and the building of personal files about activities that can be wholly innocent and may be constitutionally protected, they are integrated into a domestic surveillance network that is national in scope, beyond accountability, and far removed from community policing and public trust.

In the process, the line between traditional crimefighting and terrorism detection has been erased and something new has been born: a concept of policing that is no longer primarily reactive and focused on solving crimes or on collecting concrete evidence that a crime might be about to be committed. In "predictive policing,"local police officers serve as a resource for gathering information on a range of potential threats and situations on the assumption that criminal activity can be stopped before it develops. They are trained to use advanced technologies and tools, including powerful surveillance cameras provided through DHS grants, to monitor broad sections of the population, looking for indicators of future crimes before they are committed.

When the net is cast so wide, everything and anything begins to look like "terrorism-related activity," forcing police officers to waste time checking out dead-end tips. It is not surprising thatleaks from fusion centers have revealed that files compiled on individuals and groups are full of inaccurate information and focus on activities that may be both entirely innocent and constitutionally protected.

Constitutional lawyer Bruce Fein, a former associate deputy attorney general in the Reagan administration, told Congress in 2009 that fusion centers and SARs were worthy of the Soviet Union's KGB and East Germany's Stasi, and should be abandoned: "To an intelligence agent, informant, or law enforcement officer, everything unconventional or unorthodox looks like at least a pre-embryonic terrorist danger."

What a difference a century makes.

One hundred and three years ago, then-attorney general Charles Bonaparte enlisted some private detectives and members of the Treasury Department's Secret Service (set up in the aftermath of the Civil War to ferret out counterfeiting) as special agents in his newly created Bureau of Investigation. At a time when Congress was staunchly against any federal power engaging in political surveillance, its role was initially limited to investigating interstate crime and crimes on federal property.

Those limitations did not last long. The seed had been planted of what would become a massive intelligence and homeland security bureaucracy involving 1,271 government organizations and 1,931 private companies, according to The Washington Post's "Top Secret America" series.

How did we get from there to here?

The journey crosses a landscape of manipulated fears, as the established order confronted the "radical" ideas brought by immigrants, a series of anarchist bombings (including one on Wall Street that killed 33 people), an upsurge in trade union organizing, agitation surrounding the United States' entry into World War I, and the epidemic of strikes and race riots that followed the end of the war. The strikes of 1919 involving millions of longshoremen, stockyard workers, shoe workers, subway workers, steel workers, coal miners and members of the Boston Police were depicted in The Wall Street Journal and other newspapers as "Bolshevik" or "Soviet-inspired," or as a kind of "terror." Anti-union fever was solidly bipartisan, with the political parties stridently denouncing labor organizing as an attack on America and its way of life, and Massachusetts Secretary of State Albert P. Langtry denouncing political radicals: "If I had my way, [I would] take them out in the yard every morning and shoot them, and the next day would have a trial to see whether they were guilty."[1]

This first Red Scare opened the door to domestic surveillance by federal authorities. In 1919, Attorney General A. Mitchell Palmer set up the General Intelligence Division (known as the "Radical Division") within the Bureau of Investigation and put the 24-year-old J. Edgar Hoover in charge. Hoover drew up a list of "radicals" and, before long, he had an index of 200,000 names.

The list was instrumental in the massive 1919-1920 roundup of an estimated 6,000 immigrants and citizens, known as thePalmer Raids. Foreshadowing the post 9/11 roundup of "persons of interest," detainees were denied access to their families and to lawyers, and many were held for months, with no charges ever being filed against them. Hoover's list grew to 450,000 names in the aftermath of the raids, as the General Intelligence Division of the Bureau conducted wiretapping and break-ins. Red Squads formed by state and local police, along with the 250,000-strong volunteer force known as the American Protective League and its successor organizations, also engaged in the hunt for the "enemy within." George W. Bush-era attorney general John Ashcroft would later draw upon a long vigilante tradition of enlisting citizen spies when he proposed Operation Terrorism Information and Prevention System (TIPS).

After Coolidge's attorney general, Harlan Fiske Stone, elevated Hoover to head the entire Bureau in 1924, he encouraged the new director to shift its focus from political surveillance to criminal law enforcement. But the FBI was soon back in the surveillance business. In September 1939, President Franklin Roosevelt signed a directive authorizing the FBI to investigate matters of espionage and sabotage and asked police departments to give the FBI all the information they collect about subversive activity.

FBI Director Hoover considered the directive to still be operational during the second Red Scare that followed World War II, and he greatly expanded the FBI's secret surveillance activity. In the early 1950's, the FBI and paid informants fed information to Sen. Joseph McCarthy as he carried out his televised hearings on "subversives" in the State Department and other agencies.

The FBI did not, however, have a monopoly on domestic surveillance. Other federal agencies eventually became involved in spying on the home front, among them the Central Intelligence Agency (CIA) - established by the National Security Act in 1947 to collect foreign intelligence and explicitly barred from exercising any "police, subpoena, law enforcement powers, or internal security functions" - the Internal Revenue Service (IRS), the Treasury's Secret Service, the Immigration and Naturalization Service (INS), the State Department's Passport Office, and the National Security Agency (NSA). The secret NSA had been created by President Harry Truman in 1952 to intercept communications from the USSR, and soon began monitoring the communications of Americans. In 1956, local and state police formed the Law Enforcement Intelligence Unit, which had its own Interstate Organized Crime Index of "terrorist" individuals and groups using the computer technology of the day, and its own Red Squad intelligence units, trained by the CIA. Police departments undertaking intelligence work sometimes worked closely with the FBI, foreshadowing the Joint Terrorism Task Forces of the 21st century.

The FBI's COINTELPRO, CIA's Operation CHAOS, and NSA'sOperation SHAMROCK were some of the programs established to monitor and disrupt lawful First Amendment activity during the cold war period. In the name of keeping the country safe, infiltration, dirty tricks, psychological warfare and violence were used against political dissent, the movements for civil rights and black liberation, and protests against the Vietnam War, among other perceived threats.

Once the extent of government overreaching and abuse of power came to light through the post-Watergate investigations of the Rockefeller Commission and the Senate's Church Committee, the effort to regulate domestic spying produced the Foreign Intelligence Surveillance Act (FISA) of 1978, under which a secret court was set up to process requests for warrants for the physical and electronic collection of "foreign intelligence information" and spying on terrorist suspects within the United States. The Privacy Act of 1974 gave citizens the right to see some of the records that were held about them and to correct inaccuracies. But in the same period, the elements of a surveillance society were being assembled, as swiftly evolving computer technology gave birth to new forms of monitoring, data sharing and storage, with far-reaching implications for maintaining social control.

By the time the Soviet Union disintegrated in 1990 and 1991 and the war on Communism had been brought to a triumphant close, the intelligence bureaucracy was gearing up to engage with a new enemy, both at home and abroad. The FBI had been given primary responsibility for preventing and investigating acts of terrorism in 1986, and within a decade had created a Counterterrorism Center at FBI headquarters which was supposed to facilitate an exchange of information with the CIA, INS and other government agencies.

Who were the prime targets? Boston University law professor Susan Akram and University of California professor Kevin Johnson have described the demonization of Arabs and Muslims as terrorists in the closing decades of the 20th century in the effort to silence critics of US Middle East policy. The Congressional response to Timothy McVeigh's 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City was the passage of the Antiterrorism and Effective Death Penalty Act, whose draconian provisions to detain on secret evidence and deport "alien terrorists" were used exclusively against people of Middle Eastern descent.

"He who is not with us, absolutely and without reserve of any kind, is against us, and should be treated as an enemy alien," former president Theodore Roosevelt told the nation as the first Red Scare was getting underway.[1] In the wake of the attacks of September 11, 2001, this mindset commanded a global stage. "Either you are with us, or you are with the terrorists," Bush warned the nations of the world in his September 20, 2001, address before the joint houses of Congress.

As we shall describe in the next installment, the launch of the 21st century war on terror accelerated the movement toward "Top Secret America" without fully addressing the failings of the intelligence bureaucracy that paved the way for the September 11 attacks.

1. Quoted in David M. Oshinsky, "A Conspiracy So Immense: The World of Joe McCarthy" (1983), p. 88

Jun 25, 2009

SC: No Stripsearching Innocent 13-year-old Girls

Damn right.

From David Stout in the Times on the U.S. Supreme court opinion in Safford Unified School District v. Redding (No. 08-479):

In a ruling of interest to educators, parents and students across the country, the Supreme Court ruled, 8 to 1, on Thursday that the strip search of a 13-year-old Arizona girl by school officials who were looking for prescription-strength drugs [acting on a tip] violated her constitutional rights.

Justice Clarence Thomas dissented, as expected, finding the strip search reasonable and lawful.

The Court found that the school district is liable as a whole but not individual school officials. Justices Ginsberg and Stevens dissented on this point of the ruling.

“At no point did he attempt to call her parent,” Justice Ginsburg wrote on Thursday. “Abuse of authority of that order should not be shielded by official immunity.” (NYT)

Actually what school officials deserve in this instance is a sharp hook to their collective jaw.

Apr 21, 2009

ACLU Fights for Common Sense

Zero tolerance equals zero intelligence.

The Safford (Arizona) Middle School, child abusers against families and their defenders, including the ACLU. That's what the Safford Unified School District v. Redding (08-479) before the U.S. Supreme Court is about.

U.S. Supreme Court Hears Arguments Today On Unconstitutional Strip Search Of 13-Year-Old Student For Alleged Ibuprofen Possession (4/21/2009)


WASHINGTON – The U.S. Supreme Court today heard oral arguments over whether school officials violated the constitutional rights of a 13-year-old Arizona girl when they strip searched her based on a classmate's uncorroborated accusation that she previously possessed ibuprofen. The American Civil Liberties Union represents April Redding, the plaintiff in the lawsuit, whose daughter, Savana Redding, was strip searched by Safford Middle School officials six years ago.

"At stake here are the fundamental privacy rights of America's students – when is a strip search of a child justified," said Adam Wolf, an attorney with the ACLU who argued the case before the Court today. "The Constitution must shield students like Savana from suffering potentially lifelong harm due the senseless overreaction of school officials."

Savana Redding, an eighth grade honor roll student at Safford Middle School in Safford, Arizona, was pulled from class on October 8, 2003 by the school's vice principal, Kerry Wilson. Earlier that day, Wilson had discovered prescription-strength ibuprofen – 400 milligram pills equivalent to two over-the-counter ibuprofen pills, such as Advil – in the possession of Redding's classmate. Under questioning and faced with punishment, the classmate claimed that Redding, who had no history of disciplinary problems, had given her the pills. After escorting Redding to his office, Wilson demanded that she consent to a search of her possessions. Redding agreed, wanting to prove she had nothing to hide. Wilson did not inform Redding of the reason for the search. Joined by a female school administrative assistant, Wilson searched Redding's backpack and found nothing. Instructed by Wilson, the administrative assistant then took Redding to the school nurse's office in order to perform a strip search.

In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.
"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

The strip search was undertaken based solely on the uncorroborated claims of the classmate facing punishment. No attempt was made to corroborate the classmate's accusations among other students or teachers. No physical evidence suggested that Redding might be in possession of ibuprofen pills or that she was concealing them in her undergarments.

Furthermore, the classmate had not claimed that Redding currently possessed any pills, nor had the classmate given any indication as to where they might be concealed. No attempt was made to contact Redding's parents prior to conducting the strip search.

"To this day, I do not understand why I was strip searched, and not a day goes by that I don't think about it," said Redding prior to today's argument. "No one should have to go through this. It should be against the law."

The case, Safford Unified School District v. Redding, was appealed from the U.S. Court of Appeals for the Ninth Circuit, which found the strip search to be unconstitutional. A six-judge majority of the appeals court further held that, since the strip search was clearly unreasonable, the school official who ordered the search is not entitled to immunity.

"Strip searching a 13-year-old girl is not the same as looking in her backpack," said Steven R. Shapiro, the ACLU's national Legal Director. "Neither the Constitution nor common sense permits school officials to treat them as the same."

The ACLU and ACLU of Arizona are joined in the proceedings by Bruce Macdonald, with the law firm McNamara, Goldsmith, Jackson & Macdonald, and Andrew Petersen, with the firm Humphrey & Petersen.

In addition, a broad constellation of adolescent health experts and privacy rights advocates filed friend-of-the-court briefs in support of Redding, including the National Education Association, National Association of Social Workers (NASW), CATO Institute, Rutherford Institute, Goldwater Institute, and Urban Justice Center, among others.

NASW's brief documents that strip searches can have a devastating emotional impact on students, deeply and irrevocably affecting the victims' relationship with their peers and school officials.

The ACLU's brief in the case is available online at:

Apr 20, 2009

Fourth Amendment

One of the freedoms that they hate us for.

Unreasonable Search
The strip-search of Savana Redding at an Arizona middle school was unnecessary, humiliating and clearly unreasonable.

Apr 16, 2009

NSA Intercepts of Americans

N.S.A.’s Intercepts Exceed Limits Set by Congress
The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

There was a time when this would be greeted with outrage. Will Obama take on the national security state?

Feb 15, 2009

Kathleen Falk, Democrats and Louis Dembitz Brandeis

Update: Related piece by Adam Cohen warns that the Supreme Court May Be About to Kill Off the Exclusionary Rule (NYT)

"They conferred, as against the Government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
- Justice Louis Dembitz Brandeis, (the "People's Attorney") dissenting opinion in Olmstead v. United States (1928)

The American electorate is regularly treated to examples of Democrats and liberals going along to get along with the powers that be.

Too often this going along involves complicity in appalling violations of our liberties at home, and inhumanity abroad as we loose our killing machine upon innocents.

Recent examples abound. We warehouse the largest proportion of our citizens in prisons and jails, with active aiding and abetting by liberal politicians (especially prosecutors seeking higher elective office).

The Patriot Act [and thank you again Sen. Russ Feingold for being the only U.S. senator to oppose this], the Iraq War, trillions of dollars for the military-industrial complex, the war on drugs, the war on terror, one can go on.

So what to do when the war drums on the Potomac beat as we corrupt and ruin the lives of our fellows at home and decimate the Bill of Rights?

Write a letter to Slate/the New Republic/the Atlantic/the New Yorker? Right, I used to think so.

But that's wasting time. As Noam Chomsky wrote on the liberals' applauding the run-up to the 2001 bombing of Afghanistan that ended up killing 1,000s more innocents than were murdered on 9/11:

(L)iberal intellectuals have lined up in support of the war machine in the familiar style -- discussed, for example, by Randolph Bourne in classic essays--and since they know they do not have the intellectual competence to deal with those who refuse to go along, resort to what comes natural to the educated classes: hysterical tantrums, lies, and abuse. Why become involved? There are more important things to do--such as continue to falsify their increasingly desperate claim that everyone is following them in their depraved subordination to power.
- CounterPunch, April 30, 2002
Speaking truth to political power in innovative ways at all levels of government seems an uncontroversial suggestion; to some this is simply a moral imperative, falsifying the notion that liberty, peace, and justice are not the concerns of the American people.

The Fourth Amendment and Michigan Department of State Police v. Sitz

Let's look locally. It was no great surprise to read the reaction of those trashing the Fourth Amendment and anyone daring to criticize Dane County Executive Kathleen Falk's strong advocacy of police roadblocks in a self-proclaimed effort to change the drinking "culture" of Wisconsin.

Even many liberals with long histories of peace-and-justice work are all too happy to aid the effort of Chief Justice William H. Rehnquist (1994–2005) who was never hesitant to weaken the Bill of Rights during his tenure on the court as he did in Michigan Department of State Police v. Sitz (1988) (decided in 1990) that enables states to enact roadblocks to battle drunk drivers, no matter the Fourth Amendment for those drivers who are doing absolutely nothing wrong or illegal.

You say you are an innocent, but you drive a car. Well, your Fourth Amendment rights go out the window like so many gas fumes out of your tailpipe is the effect of the Rehnquist decision.

Today, one daily newspaper (online) has spoken out for the Fourth Amendment on the police roadblock/Kathleen Falk question, the Capital Times:

No matter how they are operated, checkpoints where motorists are forced to pull over even where there is no indication of impaired driving are a form of unreasonable search and seizure that cannot be sanctioned in Wisconsin. Other states, with less regard for basic liberties, may allow checkpoints. But there is insufficient legal or scientific justification to warrant such an intrusion by state and local authorities in a state that has always set a higher standard when it comes to protecting the right to privacy.

That's quite insufficient to knock down the efforts of Falk, Jim Rowan, the Wisconsin State Journal, and others to trash the Fourth Amendment rights of Wisconsin citizens. Others should speak out.

So it's worth reviewing the three dissents in the Michigan Department of State Police v. Sitz (1988) decision written by John Paul Stevens, William J. Brennan, Jr. and that most uppity of black men, Thurgood Marshall, who recall the maxim of brother Brandeis.

Perhaps then the reader may decide why voting against the liberty-destroying efforts of Dane County Executive Kathleen Falk is worth the effort this April election and show Falk the boot for her betrayal of the cause of liberty and her abdication of her role as a protector of a fundamental right.

Below are links to the Brennan-Marshall and the Stevens dissents, and the text of the Brennan-Marshall dissent.

- Brennan and Marshall's dissenting opinion in Michigan Department of State Police v. Sitz (1988)

- John Paul Stevens' dissenting opinion (joined by Marshall and Brennan) in Michigan Department of State Police v. Sitz (1988)


496 U.S. 444 Michigan Department of State Police v. Sitz
No. 88-1897 Argued: Feb. 27, 1990 --- Decided: June 14, 1990

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication without any individualized suspicion that a specific driver is intoxicated. The Court does so by balancing the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped. Ante at 455.

For the reasons stated by JUSTICE STEVENS in Parts I and II of his dissenting opinion, I agree that the Court misapplies that test by undervaluing the nature of the intrusion and exaggerating the law enforcement need to use the roadblocks to prevent drunken driving. See also United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) (BRENNAN, J., dissenting). I write separately to express a few additional points.

The majority opinion creates the impression that the Court generally engages in a balancing test in order to determine [p457] the constitutionality of all seizures, or at least those "dealing with police stops of motorists on public highways." Ante at 450. This is not the case. In most cases, the police must possess probable cause for a seizure to be judged reasonable. See Dunaway v. New York, 442 U.S. 200, 209 (1979). Only when a seizure is "substantially less intrusive," id. at 210, than a typical arrest is the general rule replaced by a balancing test. I agree with the Court that the initial stop of a car at a roadblock under the Michigan State Police sobriety checkpoint policy is sufficiently less intrusive than an arrest so that the reasonableness of the seizure may be judged, not by the presence of probable cause, but by balancing the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

Brown v. Texas, 443 U.S. 47, 51 (1979). But one searches the majority opinion in vain for any acknowledgment that the reason for employing the balancing test is that the seizure is minimally intrusive.

Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is "slight," ante at 451, it asserts without explanation that the balance "weighs in favor of the state program." Ante at 455.

The Court ignores the fact that, in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-883 (1975); Terry v. Ohio, 392 U.S. 1, 27, (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. See Prouse, supra, 440 U.S. at 654-655; Martinez-Fuerte, supra, 428 U.S. at 577 (BRENNAN, J., dissenting) ("Action based merely on [p458] whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment"). By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework.

Presumably, the Court purports to draw support from Martinez-Fuerte, supra, which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures. But as JUSTICE STEVENS demonstrates, post at 463-466, 471-472, the Michigan State Police policy is sufficiently different from the program at issue in Martinez-Fuerte that such reliance is unavailing. Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte, it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion. In Martinez-Fuerte, the Court explained that suspicionless stops were justified because

[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.

428 U.S. at 557. There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. See Prouse, supra, 440 U.S. at 661. That stopping every car might make it easier to prevent drunken driving, but see post at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion.

The needs of law enforcement stand in constant tension with the Constitution's protections [p459] of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.

Alameida-Sanchez v. United States, 413 U.S. 266, 273 (1973). Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the "minimally intrusive" seizures involved in this case.

I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.

The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some "balancing test" than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the "reasonable" requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials -- perhaps even supported by a majority of citizens -- may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

New Jersey [p460] v. T.L.O., 469 U.S. 325, 361-362 (1985) (BRENNAN, J., concurring in part and dissenting in part) (footnote omitted).

In the face of the "momentary evil" of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent.

Contact author at:

- mal contends

Feb 6, 2009

Damn, They're Dumb

Speaking Truth to Power, or Toeing the Line?

Ever wonder if those encrusted with the mantle of "progressive" are more open-minded and rational than political rightwingers?

Here's some evidence that many calling themselves progressive are just as bone-headed as the neocons. See the commentary responding to a piece in Uppity Wisconsin on the Dane County Executive's race at

The arguments made against presenting facts on Kathleen Falk's (and former Supreme Court Justice Louis Butler's) joining the War on Drugs and the Fourth Amendment boils down to this: Pointing out the facts on policy, judicial campaigns catering to self-proclaimed impartiality and bad government administration is bad for Democrats and progressives, hence not to be spoken or written.

- ... Perhaps you can disclose whether you are paid by the Mistele campaign or the Republican party for the service you are doing for them in attacking Falk. ... It's shocking you can call yourself a progreessive after attacking Butler and now Falk.

- You slammed Louis Butler last year ...


Feb 4, 2009

Cap Times: Civil Liberties, Yes

It's about time someone spoke up against Kathleen Falk's bone-headed approach to addressing the issue of operating a vehicle while intoxicated (OWI) and the non-issue of Wisconsin's alleged drinking "culture" problem.

Falk's criminalization and anti-civil liberties OWI agenda drew reproach from her opponent, Nancy Mistele, at the first debate (January) between the two likely candidates for Dane County Executive in the general election in April.

Mistele hit the statist, heavy-handed Falk program by pointing out that personal responsibility and private action were critical vis a vis government's involvement of changing the "culture," to a round of groans from Falk supporters.

Today's Captial Times hits Falk's approach, though not naming Falk as a leading advocate; [wish they had].

... But the drinking culture of Wisconsin -- rooted as it is in the state's broader culture -- is not the problem. There is nothing wrong, per se, with a drinking culture -- especially if it is rooted in good fellowship and good times. ...

But no moves should be made to implement or fund wrongheaded proposals to permit law enforcement authorities to establish checkpoints on Wisconsin roadways.

No matter how they are operated, checkpoints where motorists are forced to pull over even where there is no indication of impaired driving are a form of unreasonable search and seizure that cannot be sanctioned in Wisconsin. Other states, with less regard for basic liberties, may allow checkpoints. But there is insufficient legal or scientific justification to warrant such an intrusion by state and local authorities in a state that has always set a higher standard when it comes to protecting the right to privacy. ...

Checkpoints draw the attention of law enforcement authorities away from the offenders they say they are out to catch and turn it toward citizens who would not be under suspicion.

Wisconsin can crack down on drunken driving without cracking down on the Constitution.

Myself, I'm waiting for Falk to advocate mandatory arrests for being German, Irish or being in college at UW-Madison.

That ought to fix this alleged drinking "culture" problem.

Kathleen Falk's screw-ups on the 911 Center and UW-Madison student Brittany Zimmermann murder alone disqualify her from this voter's choice for Dane County Executive. The fact that Falk chooses to advocate chopping away at what little is left of the Fourth Amendment just closes the deal to give Falk the boot. Proust!

Jan 29, 2009

Falk Is Hostile to Privacy and Liberty

In 1989-90, I covered an area controversy for the Capital Times about a bunch of farmers and landowners in Dane and Green counties who took exception to the plans of a wholly owned subsidiary of the Houston-based Enron Corporation [now infamous for its iconic lies and fraud].

Enron’s Northern Natural Gas Co. wanted to build a natural gas pipeline through peoples’ private properties but didn’t bother to consult with the people.
The landowners’ reaction was swift and furious.

Enlisting politicians of all stripes from Denise Solie and the late Lyman F. Anderson, to Chuck Chvala, Russ Feingold and Herb Kohl, the landowners successfully waged a fight to change the route of the pipeline with the legal assistance of attorneys Mike Bauer and Ed Garvey.

The message was clear: Don’t tread on us and get your hands off of our private property. In person, some of the angry landowners were more colorful in their suggestions of where Enron’s pipeline could be sited.

In Dane County, there is an innate sentiment that neither government, nor large corporations nor anyone else should take a heavy hand in intruding on citizens’ privacy; not in their homes and not in their persons.

Such classical liberal sentiments animated the Bill of Rights at this country’s founding.

Twenty years ago, area politicians of all persuasions, at all levels of government were there to back up their fellow citizens should a Northern Natural Gas Co. intrude with a heavy hand

Not so anymore.

Today’s we have Dane County Executive Kathleen Falk telling her fellow citizens that if they wish to drive their cars, they are required to submit to police searches and roadblocks which Falk euphemistically calls “sobriety checkpoints,” not because of anything law-abiding citizens have done but because others have destructive driving records.

And Falk’s heavy hand is backed up by the State Journal and many other politicians and media.

For Falk it’s not enough now that we live a surveillance society seemingly with cameras at every stoplight.

Nope roadblocks are needed now. You say you’re a law-abiding driver, well then you have to prove it at a roadblock, says Kathleen Falk.

At yesterday’s debate, when the topic of Falk’s over-the-top, draconian, roadblocks proposed alcohol abuse initiative came up, Mistele responded with a considered response that personal responsibility and private action were critical.

“The effects of alcohol are a very serious problem, but I also think it's a problem that is a personal responsibility issue," said Mistele who volunteered that her grandfather was a founding member of Alcoholics Anonymous in Wisconsin.

Good for Mistele.

But from the reaction of the pro-Falk crowd you would have thought that Mistele was proposing giving 14-year-olds free bottles of booze and extolling the virtues of Hunter S. Thompson’s driving on the highway.

Falk’s foray into the more-police, more-criminalization, less-liberty and less-privacy politics is good news for the burgeoning substance abuse industry and the authoritarians who self select to work as cops. And it sure as hell makes me think twice about Falk's land use policies.

It’s bad news for those who feel our privacy and liberty are values to be cherished and need not be given up for the offences and sins of others.

- via mal contends

Jan 22, 2009

Does Wisconsin Still Like the Fourth Amendment?

One repulsive feature in the liberal arguments for routine police roadblocks [advocates call them “sobriety checkpoints”] is one of omission: The absolute refusal to address why roadblocks are offensive to liberty and specifically Fourth Amendment concerns.

Instead, we are treated to 38 other states do it; the Supreme Court’s 4th amendment doctrine of the Roberts Court says it’s okay, and so on.

Whatever happened to the libertarian ethos that we must be suspicious of claims demanding that we hand over our liberty for safety and security?

And when did we start taking our cues on liberty from Chief Justice John Roberts?

From Kathleen Falk, Jim Rowan, and other liberals, there is not so much as lip service paid to Fourth Amendment concerns.

Personally, I’m voting against Kathleen Falk in her reelection bid for Dane County Executive precisely because of her disregard of Fourth Amendment liberties [and her handling of the 911 Center-Zimmermann scandal].

A comment I received on a recent piece on the topic is instructive: Oh, you just must like to smoke pot and drive and you must like drinking and driving.

Apparently, the idea that citizens just like their Fourth Amendment whole and unharmed is incomprehensible to some, to many.

You would think that those who value liberty would begin their advocacy of roadblocks by prefacing how invidious police roadblocks are to the Fourth Amendment, but .... .

But there is not so much as a rhetorical struggle when it comes to proposing roadblocks.

The pro-roadblock crowd doesn’t grabble with such concerns because liberty is no longer a worry as they drunkenly veer into the old lock-them-up, criminalize, get-tough-on-crime nostrums of the last four decades that have resulted in America leading the world in its citizens incarcerated.

“The U.S. has less than 5 percent of the world's population but almost 25 percent of the world's prisoners. The U.S. leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment.” (NYT, Liptak, 04/27/08)

Iran? Saudi Arabia? Get in line, we’re number one in taking away our fellow citizens’ liberty but Rowen and Falk and company want a bigger lead.

But hey, what do James Madison (he’s that Bill of Rights guy after whom we named our capital) and the International Center for Prison Studies at King's College London know anyway?

I say they knew and know a lot about liberty, and as for the liberals who have gone along with (and now lead the way on) this tough-on-crime, war-against-drugs, more-people-in-jail foolishness: YOU'RE THE PROBLEM!

Fourth Amendment

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

Contact author at:
- via mal contends

Jan 16, 2009

Dane County Exec Kathleen Falk’s Tenure Should End

Dane County Executive Kathleen Falk has joined the let’s-set-up-police-roadblocks-(sobriety checkpoints) bandwagon.

See, Falk—she of the let’s-cover-our-asses-fast reaction to the Dane County 911 Center’s widely reported screw-ups leading to the murder of Brittany Zimmermann—says she wants to change the attitudes towards and culture of Wisconsin drinking.

Gee, changing the culture, that's an interesting if unenlightened, proposed role for politicians and elected officeholders.

Anyway, let’s set up “checkpoints,” she advises our governor.

After thinking you see, Falk “… quickly realized that steps must be taken on the level of state policy to help curb the tide of alcohol abuse," Falk writes to Gov. Doyle, it is reported in the State Journal (Matthew DeFour) this morning.

A “tide” in the culture that we must address by draconian measures like "checkpoints" and criminalization?

Is this the precise, sober analysis that we can expect if we reelect Falk?

How about some checkpoints between Kathleen's Falk's administration, Dane County citizens and the 911 Center; you know that emergency thing that is supposed to work during, like, emergencies?

What I see from Falk is a tide of incompetence and bad judgement that led to a young woman’s murder, and now proposed opportunistic police measures better suited to the roadblock-loving folks of Indiana and the Fourth Amendment-hating Bush Department of Justice.

Maybe she’s hoping her tough-on-drinking stands will cover her incompetence and that of her lackey, Joe Norwick, her political appointment, whom she handpicked to run the 911 center in the first place. But Falk says her opponents should not make "political hay" of the Zimmermann tragedy.

Falk, a liberal with whom I generally agree on policy stands, is displaying either an ignorance or apathy of the propriety of checkpoints and criminalization (we need more people in jail), but I think her long screw-up on the Zimmermann case alone earns her the boot.

And I wish the Zimmermann family well in its wrongful death lawsuit against Falk, which I'm sure Falk will go to considerable lengths to dispute. It's Falk political career that's really important, don't you know?

In any event, much as I despise Nancy Mistele’s (Falk's likely opponent this spring) policy stands and am appalled at the thought of at seeing Mistile for four years in the Exec's seat, it’s time to dump Kathleen Falk, because what's really important is the death of a young woman and the liberties and safety our community exists to defend.

On that score, Falk has fallen down on the job.

Jul 23, 2008

Salon: Surveillance State Huge, Investigation May Be Finally Coming

Those longing for an accounting of Bush's historic abuse of power may get their wish.

In Salon, Tim Shorrock has uncovered new modes of state surveillance of Americans, and documents contemplating "a potential investigation of the White House that could rival Watergate."

Breaking new ground on the government's programs monitoring Americans to be used in a declared national emergency, Shorrock reports on programs "designed for use by the military in the event of a national catastrophe, a suspension of the Constitution or the imposition of martial law."

Some excerpts:

The last several years have brought a parade of dark revelations about the George W. Bush administration, from the manipulation of intelligence to torture to extrajudicial spying inside the United States. But there are growing indications that these known abuses of power may only be the tip of the iceberg. Now, in the twilight of the Bush presidency, a movement is stirring in Washington for a sweeping new inquiry into White House malfeasance that would be modeled after the famous Church Committee congressional investigation of the 1970s. ...

A prime area of inquiry for a sweeping new investigation would be the Bush administration's alleged use of a top-secret database to guide its domestic surveillance. Dating back to the 1980s and known to government insiders as "Main Core," the database reportedly collects and stores -- without warrants or court orders -- the names and detailed data of Americans considered to be threats to national security.
According to several former U.S. government officials with extensive knowledge of intelligence operations, Main Core in its current incarnation apparently contains a vast amount of personal data on Americans, including NSA intercepts of bank and credit card transactions and the results of surveillance efforts by the FBI, the CIA and other agencies. One former intelligence official described Main Core as "an emergency internal security database system" designed for use by the military in the event of a national catastrophe, a suspension of the Constitution or the imposition of martial law. Its name, he says, is derived from the fact that it contains "copies of the 'main core' or essence of each item of intelligence information on Americans produced by the FBI and the other agencies of the U.S. intelligence community."
Some of the former U.S. officials interviewed, although they have no direct knowledge of the issue, said they believe that Main Core may have been used by the NSA to determine who to spy on in the immediate aftermath of 9/11. Moreover, the NSA's use of the database, they say, may have triggered the now-famous March 2004 confrontation between the White House and the Justice Department that nearly led Attorney General John Ashcroft, FBI director William Mueller and other top Justice officials to resign en masse.