Washington’s BlogFeb 22, 2013
Preface: While a lot of people talk about the loss of our Constitutional
liberties, people usually speak in a vague, generalized manner … or focus on
only one issue and ignore the rest.
This post explains the liberties guaranteed in the Bill of Rights – the
first 10 amendments to the United States Constitution – and provides a scorecard
on the extent of the loss of each right.
First Amendment
The 1st Amendment protects speech, religion, assembly and the press:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
However, the government is
arresting those speaking out … and
violently crushing peaceful assemblies which attempt to petition
the government for redress.
A federal judge found that the law allowing indefinite detention of Americans
without due process has a
“chilling effect” on free speech. And see
this and
this.
The
threat of being labeled a terrorist for exercising our First
Amendment rights certainly violates the First Amendment. The government
is
using laws to crush dissent, and it’s gotten so bad that
even
U.S. Supreme Court justices are saying that we are
descending into tyranny.
For example, the following actions may get an American citizen living on U.S.
soil labeled as a “suspected terrorist” today:
And holding the following beliefs may also be considered grounds for
suspected terrorism:
Of course,
Muslims are more or less subject to a
separate system of justice in America.
And 1st Amendment rights are especially chilled when power has become so
concentrated that
the same agency which spies on all Americans
also
decides who should be assassinated.
Second Amendment
The 2nd Amendment states:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be
infringed.
Gun control and gun rights advocates obviously have very different views
about whether guns are a force for violence or for good.
But even a top liberal Constitutional law expert reluctantly admits that the
right to own a gun is
as important a Constitutional right as freedom of speech or
religion:
Like many academics, I was happy to blissfully ignore the Second
Amendment. It did not fit neatly into my socially liberal agenda.
***
It is hard to read the Second Amendment and not honestly conclude that the
Framers intended gun ownership to be an individual right. It is true that the
amendment begins with a reference to militias: “A well regulated militia, being
necessary to the security of a free state, the right of the people to keep and
bear arms, shall not be infringed.” Accordingly, it is argued, this amendment
protects the right of the militia to bear arms, not the individual.
Yet, if true, the Second Amendment would be effectively declared a defunct
provision. The National Guard is not a true militia in the sense of the Second
Amendment and, since the District and others believe governments can ban guns
entirely, the Second Amendment would be read out of existence.
***
More important, the mere reference to a purpose of the Second
Amendment does not alter the fact that an individual right is created. The right
of the people to keep and bear arms is stated in the same way as the right to
free speech or free press. The statement of a purpose was intended to
reaffirm the power of the states and the people against the central government.
At the time, many feared the federal government and its national
army. Gun ownership was viewed as a deterrent against abuse by the
government, which would be less likely to mess with a well-armed
populace.
Considering the Framers and their own traditions of hunting and
self-defense, it is clear that they would have viewed such ownership as
an individual right — consistent with the plain meaning of the
amendment.
None of this is easy for someone raised to believe that the Second
Amendment was the dividing line between the enlightenment and the dark ages of
American culture. Yet, it is time to honestly reconsider this amendment and
admit that … here’s the really hard part … the NRA may have been right. This does not mean that
Charlton Heston is the new Rosa Parks or that no restrictions can be placed on
gun ownership. But it does appear that gun ownership was made a
protected right by the Framers and, while we might not celebrate it, it is time
that we recognize it.
The gun control debate – including which weapons and magazines are banned –
is still in flux …
Third Amendment
The 3rd Amendment prohibits the government forcing people to house
soldiers:
No Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be prescribed by
law.
Hey … we’re still honoring one of the Amendments! Score one for We the
People!
Fourth Amendment
The 4th Amendment prevents unlawful search and seizure:
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.
But the government is
flying drones over the American homeland
to
spy on us.
Senator Rand Paul
correctly notes:
The domestic use of drones to spy on Americans clearly violates the Fourth
Amendment and limits our rights to personal privacy.
Paul
introduced a bill to “protect individual
privacy against unwarranted governmental intrusion through the use of unmanned
aerial vehicles commonly called drones.”
Emptywheel
notes in a post entitled “The OTHER Assault
on the Fourth Amendment in the NDAA? Drones at Your Airport?”
***
As the map above makes clear–taken from this 2010 report–DOD [the Department of
Defense] plans to have drones all over the country by 2015.
Many police departments are also using drones to spy on us. As the Hill
reported:
At least 13 state and local police agencies around the country have used
drones in the field or in training, according to the Association for Unmanned
Vehicle Systems International, an industry trade group. The Federal Aviation
Administration has predicted that by the end of the decade, 30,000 commercial
and government drones could be flying over U.S. skies.
***
“Drones should only be used if subject to a powerful framework that regulates
their use in order to avoid abuse and invasions of privacy,” Chris Calabrese, a
legislative counsel for the American Civil Liberties Union, said during a
congressional forum in Texas last month.
He argued police should only fly drones over private property if they have a
warrant, information collected with drones should be promptly destroyed when
it’s no longer needed and domestic drones should not carry any weapons.
He argued that drones pose a more serious threat to privacy than helicopters
because they are cheaper to use and can hover in the sky for longer periods of
time.
A congressional report earlier this year predicted that drones could soon be
equipped with technologies to identify faces or track people based on their
height, age, gender and skin color.
Even without drones, Americans are the
most spied on people in world history:
The American government is collecting and storing virtually every phone call, purchases, email, text message, internet
searches, social media communications, health information, employment history, travel and student
records, and virtually all other information of every American. [And see this.]
Some also claim that the government is also using facial recognition software
and surveillance cameras to track where everyone is going. Moreover,
cell towers track where your phone is at any moment, and
the major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests
for cell phone locations and other data in 2011. (And – given that your smartphone routinely sends your location information
back to Apple or Google – it would be child’s play for the government to track
your location that way.) Your iPhone, or other brand of smartphone is spying onvirtually everything you do (ProPublica
notes: “That’s No Phone. That’s My Tracker“).
As the top spy chief at the U.S. National Security Agency explained this week, the American government is collecting
some 100 billion 1,000-character emails per day, and 20 trillion communications
of all types per year.
He says that the government has collected all of the communications of
congressional leaders, generals and everyone else in the U.S. for the last 10
years.
He further explains that he set up the NSA’s system so that all of the
information would automatically be encrypted, so that the government had to
obtain a search warrant based upon probably cause before a particular suspect’s
communications could be decrypted. [He specifically did this to comply with the
Fourth Amendment's prohibition against unreasonable search and seizure.] But the
NSA now collects all data in an unencrypted form, so that no probable cause is
needed to view any citizen’s information. He says that it is actually cheaper
and easier to store the data in an encrypted format: so the government’s current
system is being done for political – not practical – purposes.
He says that if anyone gets on the government’s “enemies list”, then the
stored information will be used to target them. Specifically, he notes that if
the government decides it doesn’t like someone, it analyzes all of the data it
has collected on that person and his or her associates over the last 10 years to
build a case against him.
Wired
reports:
Transit authorities in cities across the country are quietly installing
microphone-enabled surveillance systems on public buses that would give them the
ability to record and store private conversations….
The systems are being installed in San Francisco, Baltimore, and other cities
with funding from the Department of Homeland Security in some cases ….
The IP audio-video systems can be accessed remotely via a built-in web server
(.pdf), and can be combined with GPS data to track the movement of buses and
passengers throughout the city.
***
The systems use cables or WiFi to pair audio conversations with
camera images in order to produce synchronous recordings. Audio and video can be
monitored in real-time, but are also stored onboard in blackbox-like
devices, generally for 30 days, for later retrieval. Four to six cameras with
mics are generally installed throughout a bus, including one near the driver and
one on the exterior of the bus.
***
Privacy and security expert Ashkan Soltani told the Daily that the audio
could easily be coupled with facial recognition systems or audio recognition
technology to identify passengers caught on the recordings.
RT
notes:
Street lights that can spy installed in some American
cities
America welcomes a new brand of smart street lightning systems:
energy-efficient, long-lasting, complete with LED screens to show ads. They can
also spy on citizens in a way George Orwell would not have imagined in his worst
nightmare.
With a price tag of $3,000+ apiece, according to an ABC report, the street
lights are now being rolled out in Detroit, Chicago and Pittsburgh, and may soon
mushroom all across the country.
Part of the Intellistreets systems made by the company Illuminating Concepts,
they havea number of “homeland security applications”
attached.
Each has a microprocessor “essentially similar to an iPhone,” capable
ofwireless communication. Each can capture images and count
people for the police through a digital camera, record conversations of
passers-by and even give voice commands thanks to a built-in
speaker.
Ron Harwood, president and founder of Illuminating Concepts, says he eyed the
creation of such a system after the 9/11 terrorist attacks and the Hurricane
Katrina disaster. He is“working with Homeland Security” to deliver his
dream of making people “more informed and safer.”
Fox news notes that the government is
insisting that “black boxes” be installed in
cars to track your location.
The TSA has moved way past airports, trains and sports stadiums, and is
deploying mobile scanners to spy on people all over the
place. This means that traveling within the United States is
no longer a private affair. (And they’re probably
bluffing, but the Department of Homeland Security claims they will soon be able
to know your adrenaline level, what you ate for breakfast and what you’re
thinking …
from 164 feet away.)
And Verizon has applied for a patent that would allow your television to
track what you are doing, who you are with, what objects you’re
holding, and what type of mood you’re in. Given Verizon and other major
carriers responded to
at least 1.3 million law enforcement requests
for cell phone locations and other data in 2011, such information would not be
kept private. (And some folks could be spying on you through your tv using
existing technology.)
Of course, widespread spying on Americans began
before 9/11 (confirmed
here and
here. And see
this). So the whole “post-9/11 reality”
argument falls flat.
And the spying
isn’t being done to keep us safe … but to crush dissent and
to
smear people who uncover unflattering this about the
government … and to
help the too big to fail businesses compete against smaller
businesses (and
here).
In addition, the ACLU
published a map in 2006 showing that nearly two-thirds of
the American public – 197.4 million people – live within a “constitution-free
zone” within 100 miles of land and coastal borders.
The ACLU
explained:
- Normally under the Fourth Amendment of the U.S. Constitution, the American
people are not generally subject to random and arbitrary stops and searches.
- The border, however, has always been an exception. There, the longstanding
view is that the normal rules do not apply. For example the authorities do not
need a warrant or probable cause to conduct a “routine search.”
- But what is “the border”? According to the government, it is a 100-mile
wide strip that wraps around the “external boundary” of the United States.
- As a result of this claimed authority, individuals who are far away from the
border, American citizens traveling from one place in America to another, are
being stopped and harassed in ways that our Constitution does not permit.
- Border Patrol has been setting up checkpoints inland — on highways in states
such as California, Texas and Arizona, and at ferry terminals in Washington
State. Typically, the agents ask drivers and passengers about their
citizenship. Unfortunately, our courts so far have permitted these kinds of
checkpoints – legally speaking, they are “administrative” stops that are
permitted only for the specific purpose of protecting the nation’s borders.
They cannot become general drug-search or other law enforcement efforts.
- However, these stops by Border Patrol agents are not remaining confined to
that border security purpose. On the roads of California and elsewhere in the
nation – places far removed from the actual border – agents are stopping,
interrogating, and searching Americans on an everyday basis with absolutely no
suspicion of wrongdoing.
- The bottom line is that the extraordinary authorities that the government
possesses at the border are spilling into regular American streets.
Computer World
reports today:
Border agents don’t need probable cause and they don’t need a stinking
warrant since they don’t need to prove any reasonable suspicion first. Nor,
sadly, do two out of three people have First Amendment protection; it is as if
DHS has voided those Constitutional amendments and protections they provide to
nearly 200 million Americans.
***
Don’t be silly by thinking this means only if you are physically trying to
cross the international border. As we saw when discussing the DEA using license
plate readers and data-mining to track Americans movements, the U.S. “border”
stretches out 100 miles beyond the true border. Godfather Politics added:
But wait, it gets even better! If you live anywhere in Connecticut,
Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New
Jersey or Rhode Island, DHS says the search zones encompass the entire
state.
Immigrations and Customs Enforcement (ICE) and Customs and Border Protection
(CBP) have a “longstanding constitutional and statutory authority
permitting suspicionless and warrantless searches of merchandise at the border
and its functional equivalent.” This applies to electronic devices, according to
the recent CLCR “Border Searches of Electronic Devices” executive summary [PDF]:
Fourth Amendment
The overall authority to conduct border searches without suspicion or warrant
is clear and longstanding, and courts have not treated searches of electronic
devices any differently than searches of other objects. We conclude that CBP’s
and ICE’s current border search policies comply with the Fourth Amendment. We
also conclude that imposing a requirement that officers have reasonable
suspicion in order to conduct a border search of an electronic device would be
operationally harmful without concomitant civil rights/civil liberties
benefits. However, we do think that recording more information about why
searches are performed would help managers and leadership supervise the use of
border search authority, and this is what we recommended; CBP has agreed and has
implemented this change beginning in FY2012.
First Amendment
Some critics argue that a heightened level of suspicion should be required
before officers search laptop computers in order to avoid chilling First
Amendment rights. However, we conclude that the laptop border searches allowed
under the ICE and CBP Directives do not violate travelers’ First Amendment
rights.
The ACLU said, Wait one darn minute! Hello, what happened to the
Constitution? Where is the rest of CLCR report on the “policy of combing through
and sometimes confiscating travelers’ laptops, cell phones, and other electronic
devices—even when there is no suspicion of wrongdoing?” DHS maintains it is not
violating our constitutional rights, so the ACLU said:
If it’s true that our rights are safe and that DHS is doing all the things it
needs to do to safeguard them, then why won’t it show us the results of its
assessment? And why would it be legitimate to keep a report about the impact of
a policy on the public’s rights hidden from the very public being
affected?
***
As ChristianPost wrote, “Your constitutional
rights have been repealed in ten states. No, this isn’t a joke. It is not
exaggeration or hyperbole. If you are in ten states in the United States, your
some of your rights guaranteed by the Bill of Rights have been made null and
void.”
The ACLU filed a Freedom of Information Act
request for the entire DHS report about suspicionless and warrantless “border”
searches of electronic devices. ACLU attorney Catherine Crump said “We hope to
establish that the Department of Homeland Security can’t simply assert that its
practices are legitimate without showing us the evidence, and to make it clear
that the government’s own analyses of how our fundamental rights apply to new
technologies should be openly accessible to the public for review and
debate.”
Meanwhile, the EFF has tips to protect yourself and your devices against border
searches. If you think you know all about it, then you might try testing your
knowledge with a defending privacy at the U.S. border quiz.
Wired
pointed out in 2008 that the courts have routinely upheld
such constitution-free zones:
Federal agents at the border do not need any reason to search through
travelers’ laptops, cell phones or digital cameras for evidence of crimes, a
federal appeals court ruled Monday, extending the government’s power to look
through belongings like suitcases at the border to electronics.
***
The 9th U.S. Circuit Court of Appeals sided with the government, finding that
the so-called border exception to the Fourth Amendment’s prohibition on
unreasonable searches applied not just to suitcases and papers, but also to
electronics.
***
Travelers should be aware that anything on their mobile devices can be
searched by government agents, who may also seize the devices and keep them for
weeks or months. When in doubt, think about whether online storage or encryption
might be tools you should use to prevent the feds from rummaging through your
journal, your company’s confidential business plans or naked pictures of you and
your-of-age partner in adult fun.
Fifth Amendment
The 5th Amendment addresses due process of law, eminent domain, double
jeopardy and grand jury:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for
public use, without just compensation.
But the American government has shredded the 5th Amendment by
subjecting us to indefinite detentionand
taking away our due process rights.
The government claims the right to
assassinate or indefinitely detain any American citizen on U.S.
citizen without any due process. And
see this.
As such, the government is certainly depriving people of life, liberty, or
property, without due process of law.
There are additional corruptions of 5th Amendment rights – such as property
being taken for
privatepurposes.
The percentage of prosecutions in which a defendant is denied a grand jury
is difficult to gauge, as there is
so much secrecy surrounding many
terrorism trials.
Protection against being tried twice for the same crime after being found
innocent (“double jeopardy”) seems to be intact.
Sixth Amendment
The 6th Amendment guarantees the right to hear the criminal charges levied
against us and to be able to confront the witnesses who have testified against
us, as well as speedy criminal trials, and a public defender for those who
cannot hire an attorney:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence.
Subjecting people to
indefinite detention or
assassination obviously violates the 6th Amendment right to
a jury trial. In both cases, the defendants is “disposed of” without ever
receiving a trial … and often without ever hearing the charges against them.
More and more commonly, the government prosecutes cases
based upon “secret evidence” that they don’t show to the
defendant … or sometimes even the judge hearing the case.
The government uses “secret evidence” to
spy on Americans, prosecute
leaking or
terrorism charges (even against
U.S. soldiers) and even
assassinate people. And see
this and
this.
Secret witnesses are being used in some
cases. And sometimes lawyers are
not even allowed to read their own briefs.
Indeed, even the
laws themselves are now starting to be kept
secret. And it’s about to
get a lot worse.
True – when defendants
are afforded a jury trial – they are provided
with assistance of counsel. However, the
austerity caused by redistribution of wealth to the
super-elite is causing severe budget cuts to the courts and the public
defenders’ offices nationwide.
Moreover, there are
two systems of justice in America … one for the big banks
and other fatcats, and
one for everyone else. The government made
it
official policy not to prosecute fraud, even
though fraud is the
main business model adopted by Wall Street. Indeed, the
biggest financial crime in world history, the
largest insider trading scandal of all time, illegal
raiding of customer accounts and
blatant financing of drug cartels and terrorists have all
been committed recently without any real criminal prosecution or jail time.
On the other hand, government prosecutors are using the legal system to
crush dissent and to
silence whistleblowers.
And some of the nation’s most powerful judges have lost their independence …
and are
in bed with the powers-that-be.
Seventh Amendment
The 7th Amendment guarantees trial by jury in federal court for civil
cases:
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.
As far as we know, this right is still being respected. However – as noted
above – the
austerity caused by redistribution of wealth to the
super-elite is causing severe budget cuts to the courts, resulting in the
wheels of justice slowing down considerably.
Eighth Amendment
The 8th Amendment prohibits cruel and unusual punishment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
Indefinite detention and
assassination are obviously cruel and unusual
punishment.
The widespread system of torture carried out in the last 10 years – with
the
help of other countries –
violates the 8th Amendment. Many want to
bring it back … or at least
justify its past use.
While Justice Scalia
disingenuously argues that torture does not constitute
cruel and unusual punishment because it is meant to produce information – not
punish –
he’s wrong. It’s not only cruel and unusual … it is
technically a
form of terrorism.
And
government whistleblowers are being cruelly and unusually
punished with unduly harsh sentences meant to intimidate anyone else from
speaking out.
Ninth Amendment
The 9th Amendment provides that people have other rights, even if they aren’t
specifically listed in the Constitution:
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
We can debate what our inherent rights as human beings are. I believe they
include the right to a level playing field, and access to safe food and water.
You may disagree.
But everyone agrees that the government should not
actively
encourage fraud and manipulation. However, the government – through its
malignant, symbiotic relation with big corporations – is
interfering with our aspirations for
economic freedom,
safe food and water (instead of
arsenic-laden, genetically engineered junk), freedom from
undue health hazards such as
irradiation due to
government support of archaic nuclear power designs, and a
level playing field (as opposed to our crony capitalist system in which the
little guy has no shot due to
redistribution of wealth from the middle class to the
super-elite, and government support of
white collar criminals).
By working hand-in-glove with giant corporations to defraud us into paying
for a lower quality of life, the government is trampling our basic rights as
human beings.
Tenth Amendment
The 10th Amendment provides that powers not specifically given to
the
Federal government are reserved to the states or individual:
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.
Two of the central principles of America’s Founding Fathers are:
(1) The government is created and empowered with the consent of the
people
and
(2) Separation of powers
Today,
most Americans believe that the government
is
threatening – rather than
protecting – freedom … and that
it is no longer acting with the “consent of the governed”.
And the federal government is trampling the separation of powers by stepping
on the toes of the states and the people. For example, former head S&L
prosecutor Bill Black – now a professor of law and economics –
notes:
The Federal Reserve Bank of New York and the resident examiners and regional
staff of the Office of the Comptroller of the Currency [both] competed to
weaken federal regulation and aggressively used the preemption doctrine
to try to prevent state investigations of and actions against fraudulent
mortgage lenders.
Indeed, the federal government is doing everything it can to stick its nose
into every aspect of our lives … and
act like Big Brother.
Conclusion: While a few of the liberties enshrined in the Bill of Rights
still exist, the overall scorecard of the government’s respect for our freedom:
a failing grade.
