Jan 062012


On December 31st, President Obama signed the National Defense Authorization Act (NDAA). A lot has been said and written about this “indefinite detention” act and whether it applies to Americans on American soil. I’m not going to add to that debate. I have read various opinions concerning this bill ranging from “due process is dead” to “no big deal, they’re just formalizing what the government has been doing since 9/11” and I find myself more on the side of the “due process is dead” crowd.

I have to admit, however,  that I didn’t see this coming. I have been seriously concerned about the increasingly tyrannical turn that the American government has taken since 9/11 and have written several posts about it. But this act, coupled with previous ones, and with  judicial rulings on limits (or not) to government surveillance techniques and several proposed new laws (for example, SPOA and PIPA), seem to have moved me squarely into the tin-foil hat, conspiracy nut crowd.

What I see coming together is a large expansion of government power into what could ultimately move toward a totalitarian regime. Consider some of the following:

The 9/11 attack and the passage of the Patriot Act lead to the creation of the Department of Homeland Security. (Does it bother anyone else that the name “Homeland” sounds so much like “Fatherland” that other notorious regimes used to refer to their country?) The DHS gathered together many smaller agencies under one banner, allowing more effective control by a smaller group of people.

In addition to existing agencies, the Transportation Security Administration (TSA) was also created under DHS. Notice that TSA is not named the “Aviation Security Administration”. On its website, the TSA says that has “responsibility for security for all modes of transportation” (emphasis mine). After making commercial airplane travel a completely miserable experience, TSA VIPR (Visible Intermodal Prevention and Response) teams have now moved on to other modes of transportation.The VIPR teams have expanded to trains (including at least one incident where passengers were searched after completing their journey and leaving the train) and buses. VIPR teams have also been conducting truck searches and, in  November of 2011, conducted a pilot program in Tennessee. This pilot program was not based on any specific threat but was conducted to provide “a visible deterrence and detection security presence across Tennessee.” Other states are following.

Consider also the case with another part of DHS, Immigrations and Customs Enforcement (ICE) and the US Border Patrol. ICE has partnered with local law enforcement to enforce immigration laws, often resulting in what critics claim are instances of racial profiling. This cooperation has lead to a combining of federal and local law enforcement in a way not seen before.

The Border Patrol, on the other hand, has declared the border inspection zone with which they are concerned to include from the nation’s borders to 100 miles inland. In some cases, the Border Patrol will even expand that zone if the area in question is the “functional equivalent” of a border. Customs may also “confiscate and examine” any electronic devices a traveler may have when he or she crosses the border. There is no necessity for probable cause and they (Customs) can look for evidence of any possible crime. They can examine and copy the hard drive contents.

Something that few people took notice of was the John Warner Defense Authorization Act for Fiscal Year 2007, signed by President Bush on October 17, 2006, which gives the president the power to employ the armed forces to restore public order in any state of the United States. This further weakens the Posse Comitatus Act (pass by Congress on June 16, 1878) which prohibits most members of the federal uniformed services from exercising state law enforcement powers that maintain “law and order” on non-federal property. It allows the president to, for example, use the National Guard from state A to work in state B, in law enforcement, regardless of the wishes of the respective state governors (to whom the National Guard ostensibly reports).

And now, since NDAA has declared the whole world a war zone, anyone can be declared an enemy combatant and held without charges or access to a lawyer indefinitely. (Until the war is over? When will the “War on Terror” be over? How long has the “War on Drugs” been going on?)

So here’s what I missed. With the Patriot Act, legalized unfettered government surveillance, the ability to stop, search and possibly arrest you without charges, control over travel (by whatever means), and, with SOPA and PIPA, control over the internet worthy of a country such as Iran or China, the government is perfectly positioned to stop any potential uprising by an angered populace. No Jeffersonian revolution for the US.

I sure hope I’m a hopelessly out-of-touch conspiracy nut, because I fear for our democracy.

EDIT: 01/08/2012—Added section on the Posse Comitatus Act and the legislation which made that act moot.

 Posted by at 5:45 pm
Oct 092011

Red Rocks State Park, Nevada

There have been, in the United States, groups of people who are lawbreakers and, when someone becomes a perceived danger to the leaders of the group, that someone somehow manages to wind up dead. These groups go by various names including gangs, “the mob”, and organized crime. When such people can be shown to have caused, either by direct action or by enticing others to action, the death of people, they are prosecuted by the legal system for murder.

There have been, in the world over the ages, other groups of people who have attained positions of power and, when someone becomes a perceived danger to the leaders of the group, that someone somehow manages to wind up dead. These people have been monarchs, dictators, war lords, tribal leaders or despots. These groups has never been prosecuted by their own societies, but they have been overthrown by intrigue, war or insurrection. In other cases, the leaders have simply died before any outside agent has been able to bring them to justice.

The United States has long had various bans on killing done outside the judicial system. There are executive orders (Executive Order 11905 signed Feburary 18, 1976 by Gerald Ford banning political assassinations, Executive Order 12036 signed January 24, 1978 by Jimmy Carter further banning indirect US involvement in assassinations and Executive Order 12333 signed December 4, 1981 by Ronald Reagan reiterating the banning of US intelligence agencies carrying out assassinations.), although executive orders can and have been revised and revoked. There are laws (U.S. Code Title 18, Part I, Chapter 51, Paragraph 1119 provides for the punishment of a US citizen who kills another US citizen on foreign soil). There is the Fifth Amendment to the US Constitution which states that the government may not deprive a person of life “without due process of law”. Ever since its founding, the United States has long considered itself a nation governed by the “Rule of Law” rather than by the whim of the leader. This phrase is often used by politicians and and is often summarized with the phrase that “no person is above the law”, including most specifically the leaders themselves. It further implies that “no one can be punished by the state except for a breach of the law and that no one can be convicted of breaching the law except in the manner set forth by the law itself.

There is an October 5th post at businessinsider.com by Dr. John Corbin titled “End of Rule of Law in the United States” that is very thought provoking, particularly in the context just defined. In his article, Dr. Corbin, who now lives in Chile, makes a pretty good case for asserting that the United States has, through its actions, ended the rule of law in this country. His comments mostly have to do with the killing, ordered by President Obama on September 30, 2011, of Anwar Awlaki and Samir Khan. Both Awlaki and Khan were killed by drone strikes, on foreign soil. Neither of the two men had been convicted of any crime in any court of law. Both were American citizens. So, because of the purported activities of the two men which may have constituted treason or other illegal acts, rather than subjecting them to arrest and trial, our elected leaders instead decided to simply take them out, without a trial, without hearings and without public debate. While in this case arrest could have been problematic, this is extraordinary and should make all Americans fear that they may someday cross the boundary where the government thinks they have become inconvenient.

There is some evidence that this was a group decision. An October 6th article by Glenn Greenwald at salon.com titled “Execution by secret WH committee” explored the existence of a secret panel, operating out of the White House, which “is empowered to place American citizens on a list to be killed by the CIA, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider.” The fact that there is a committee does little to diminish the far-reaching implications of this action. As Thomas Jefferson said,

The concentrating [of powers] in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one.

A New York Times article published October 8, 2011 written by Charlie Savage titled “Secret U.S. Memo Made Legal Case to Kill a Citizen” describes a document that the Obama administration used to justify this killing of an American citizen without a trial. This legal opinion seeks to justify what has, until now, been an illegal, unconstitutional act. Of course, the government will not release the document and most certainly will cite the state secrets privilege to prevent its release. It may be the case that the legal opinion is solid and will hold up under scrutiny by legal scholars and experts outside the administration. But we may never know, if the document is not released.

The Council of Europe (An international organization in Strasbourg which comprises 47 countries of Europe. It was set up to promote democracy and protect human rights and the rule of law in Europe.) has issued a draft resolution objecting strongly to the increasing use of the state secrets privilege which states

Security and intelligence services, the need for which cannot be put into doubt, must nonetheless not become a “state within the state”, exempted from accountability for their actions. Such lack of accountability leads to a dangerous culture of impunity, which undermines the very foundations of democratic institutions.

In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation.

But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions. Such information should not be shielded from judicial or parliamentary scrutiny under the guise of “state secrecy”.

These actions by the US government should engender outrage on the part of its citizens. It is part and parcel of the host of changes to the way the government operates that have come about since the attack of September 11, 2001. Some of the changes have a basis in law (flawed as those laws may be), others have come about through Executive Orders or simply by someone in the executive branch deciding that they wanted to accomplish some specific objective. The Justice department and other legal aides have abetted the actions by providing legal opinions allowing such actions. This trend started in the Bush administration, but in continues under President Obama. We should demand more of our government. We are slipping into despotism. As Daniel Webster said,

Whatever government is not a government of laws, is a despotism, let it be called what they may.

The War on Terror and the attendant effort to instill fear in the minds of the public have had a devastating effect on this country. James Madison saw this 200 years ago,

If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.

We as a people need to rise up and demand the undoing of the ill-conceived practices instituted under the mantle of the War on Terror. We need to demand that those responsible for illegal and unconstitutional acts be held responsible. We need to insist that the legal system do its job before we are left with a hollow Constitution and a despotic, non-democratic, non-representational government. I hope it’s not too late.

Power concedes nothing without a demand. It never did and it never will.
Frederick Douglass

 Posted by at 1:03 pm
Sep 022011

Old Abandoned Train Trestle

It never fails. Seems the day before I submitted my last article (August 30, 2011), The Nation website posted an article by David K Shiplet titled “Our Vanished Civil Liberties“. I didn’t become aware of that article until today. It summarizes much better than I could what the problem is with the current state of affairs related to measures implemented after 9/11. I am very concerned that lack of privacy and the imposition of police state policies will become the new normal for a very long period of time.

 Posted by at 2:06 pm
Aug 312011

Spider Web

*Bill Moyers

I had originally titled this post with the Benjamin Franklin quotation: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” But on reflection, although the quotation is apropos, I find it a little too familiar, a little too hackneyed. The Bill Moyers quotation I ended up using is just as succinct and appropriate, so it became my title.

This post has taken me some time to produce and is the result of a number articles I have come across over the last week or so. I am indebted to the excellent organization, the Bill of Rights Defense Committee, whose email newsletter provides a number of references each day. I heartily recommend subscribing to it and supporting the organization in any way you can.

The first article I read, which depressed and angered me more than I can express, was an August 25th article on OpEdNews, a self described “non-partisan, non-profit, bottom-up, progressive / liberal news, opinion, op-ed media site, activism tool and blog community”. It was the first article in a three part series titled “2001-2011: A decade of civil liberties’ erosion in America”. This series is written by Abdus-Sattar Ghazali, a freelance journalist and Executive Editor of American Muslim Perspective.

The article begins by talking about the brief history of the gradual erosion of our civil liberties and stated forthrightly that

“The so-called War on Terror has seriously compromised the First, Fourth, Fifth, and Sixth Amendment rights of citizens and non-citizens alike.”

Mr. Ghazali goes on to describe the top ten abuses of power since 9/11  identified by the ACLU in a September 2006 report:

  1. Warrentless wiretapping
  2. Torture, Kidnapping and Detention
  3. The Growing Surveillance Society
  4. Abuse of the Patriot Act
  5. Government Secrecy
  6. Real ID
  7. No Fly and Selectee Lists
  8. Political Spying
  9. Abuse of Material Witness Statute
  10. Attacks on Academic Freedom

The key point Mr. Ghazali makes is that these erosions of civil liberties have taken place gradually, over time. They were originally justified as reasonable action to take against our foreign enemies, but have come to affect not only non-US citizens, but all of us.

In the second and third parts of the series, Mr. Ghazali describes how authorities at all levels from federal to state to local have expanded upon the powers given to them by a combination of Congressional and judicial actions. The expansive view of executive power originally espoused by the Bush administration, while initially criticized by President Obama, has come to be embraced and expanded by his administration.

Accompanying the erosion of our civil liberties has been an embrace of government secrecy, a serious threat to any democracy.

On the same day (August 25th), there was an article which appeared on the Washington Post website. This article, titled Why are we subverting the Constitution in the name of security?, was written by  Thomas Drake, a former senior executive at the National Security Agency. In it, he describes his attempts to stop the secret electronic eavesdropping and data mining operations that the government is conducting against American citizens. He concludes his piece by stating

“Before the war on terrorism, our country recognized the importance of free speech and privacy. If we sacrifice these basic liberties, according to the false dichotomy that such is required for security, then we transform ourselves from an oasis of freedom into a police state that crucifies its citizens when they step out of line or speak up against government wrongdoing. These are the hallmarks of despotism, not democracy. Is this the country we want to keep?”

Then, at the Los Angeles Time website on August 29, 2011, an article by Ken Dilanian, titled  A key Sept. 11 legacy: more domestic surveillance, was published which described the escalation of FBI and NSA secret surveillance activities on ordinary Americans starting with National Security Letters and moving onto programs which tap into and accumulate the wealth of data that exists about each of us on the Internet. All of this surveillance and data gathering are happening without judicial oversight and leads to a situation where a single branch of the government, the executive, can decide on its own who and how it wants to investigate.

Mr. Dilanian concludes with a quote from one of the people he talked with for the story, Nicholas Merril:

“I want the America back that I was taught about in school,” Merrill said. “The one where there’s checks and balances, and where one branch of government can’t do everything on its own.”

Finally, there was an article On August 30, 2011 on Security News Daily by Sue Marquette Poremba, titled 10 Ways the Government Watches You, which lists less formal mechanisms which are in place which add to government’s ability to find out things it never could in the past. Many were and are incredibly useful to each of us in our day-to-day activities, such as one-pass systems to let you get through bridge or other toll situations quickly and easily and GPS which lets you find locations with little hassle. While useful, such systems increase the government’s ability to find out about where you go and what you do. While all the legal issues are still being resolved, there have been courts rulings that accessing such information doesn’t require a search warrant (with others that disagree).

Taken together, these articles and others describe a government that is taking the first steps towards the despotism that Thomas Drake describes. The executive branch is out of control, gathering more and more information about each of us, and stepping on Constitutionally guaranteed rights without concern. The legislative and judicial branches seem to have abrogated their traditional roles of providing a check on authorities’ actions. Just where are we as a country headed?

Let me finish this post by quoting the conclusion of Abdus-Sattar Ghazali

“Rights can never be taken for granted, Prof. Gary Orfield [of the UCLA Civil Rights Project] argues by adding: In a nation that rightly proclaims its commitment to freedom across the world, our freedoms at home are our most precious asset and any threat to them undermines our credibility everywhere in an age of instant global communication. Prof. Orfield reminds us that the history of the United States is that rights are not given, they are won and they must always be defended.

“The core challenge during the Obama era to civil liberties is to rollback the repressive policies of the Bush regime, while fighting any further erosion of constitutional rights. Many Americans resisted the attacks on civil liberties during the Bush administration. Over 400 local governments and several states passed resolutions supporting the Bill of Rights and objecting to parts of the Patriot Act and other post-9/11 laws, executive orders, and policy changes. Some cities passed ordinances directing police to facilitate, not impede, peaceful demonstrations.

“Attacks on civil liberties are not minor infringements on the rights of a few extremists. Today they affect a vast cross-section of Americans. It will not be too much to say that the chilling effect of denials of our democratic freedoms curtails political debate within the U.S.

“To borrow Paul Craig Roberts, an Assistant Secretary of the Treasury in the Reagan Administration, today Americans are unsafe, not because of terrorists and domestic extremists, but because they have lost their civil liberties and have no protection from unaccountable government power. One would think that how this came about would be worthy of public debate and congressional hearings.”


 Posted by at 4:53 pm
May 212011

This is a bit of old news, but as you have probably read, on May 16th, the Supreme Court overruled the Kentucky Supreme Court regarding the need for a search warrant for police to enter a person’s home in certain circumstances. The decision was an 8 to 1 ruling. In this case it involved the “war on drugs”. But there are other cases where lower courts are opening the doors to people’s homes to police without a warrant.

In recent case, on May 12, the Supreme Count of Indiana ruled that people in Indiana have no right to resist unlawful police entry into their homes.

While the reasoning and circumstances in these cases are different, the common thread is troubling with respect to the Fourth Amendment to the Constitution.

The Fourth Amendment states: “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.”
The Patriot Act also has a provision for “sneak and peek” searches, wherein your house can be searched by law enforcement while you are absent and without informing you of the fact either before or after. These searches do require a warrant, but even though they were authorized on a wide scale under the Patriot Act, the subject of the warrant does not have to be terrorism, it may relate to any federal crime.
Police enforcement powers have been slowly increasing for years, but with these rulings and various Patriot Act provisions, is there any part of the Fourth Amendment that remains intact? Are we the people any longer “secure in our persons, houses, papers, and effects, against unreasonable searches and seizures?”

 Posted by at 11:34 am
May 062011

Mount Ranier Forest

The decision to attack Osama bin Laden with a SEAL team, rather than simply bombing the compound, was an interesting one. On the one hand, a bombing mission (or even a cruise missile strike) would have been relatively low risk, but with the caveat that it might have been difficult to verify that bin Laden had, in fact, been killed. A tactical team mission, on the other hand, is laden with risk. The US has not had notable success with helicopter-based missions into hostile territory (for example, the failed attempt during the Carter administration to free the Iranian-held embassy hostages). But a tactical approach had a number of possible benefits should it succeed:

First, it would allow verification that it was, in fact, bin Laden that was captured or killed. Second, it limited so called “collateral damage” or risk to innocent civilians. Third, it provided the opportunity to obtain potentially vital intelligence in the way of computers, discs and papers which may have existed at bin Laden’s hideaway. It is this third benefit that I would like to comment on.

Yesterday, the Washington Post reported that “Among the files recovered from captured computers and flash drives were documents detailing a previously unknown plan to attack the U.S. commuter rail network, intelligence officials confirmed. The plan, which described a sabotage attack to occur on this year’s 10th anniversary of the Sept. 11, 2001, attacks, was being actively considered as recently as February 2010, Obama administration officials said.

“There was no evidence that the plot ever advanced beyond the conceptual stage, the officials stressed.”
When I saw this report, my heart sank. It’s not that I am or was contemplating any kind of train trip either soon or at any time in the future, it’s just that I see one more opening for the US Government and the Department of Homeland Security to impose on the American public an additional layer of security measures, this time in train terminals. Taken to the extreme, which always seems to be the case these days, they could further use this as an excuse to extend security measures to the whole of the railway network, since it was, if fact, the train tracks and not the terminals that it looks like al Qaeda was targeting.
The insanity that is the Patriot Act and the hysteria over illegal immigration stirred up by various factions on the right in this country, all bolstered by judicial decisions, have shredded the Fourth Amendment.
The Fourth Amendment states: “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.”
Consider the current situation in the United States now, in 2011. In just making a decision to fly, people “voluntarily” give up a goodly portion of their Fourth Amendment rights. Their personal effects can be, and are, searched, their bodies are scanned (by a machine that conducts the equivalent of a strip search), or baring the scan, they are searched by hand in a way that, in any other circumstance, would be considered assault. And yet, we comply with this intrusion willingly because it gives us a false illusion of security.
I don’t believe it is a stretch to speculate that Homeland Security could use the latest information gathered from the attack on bin Laden to argue that the railway system is just as much a risk to the general population as the airways and should hence have the same kind of intrusive security measures.
At what point do the American people stand up and say “enough”?
In later posts, I expect to have more to say about ways in which our Fourth Amendment rights are being trampled by the government, with the attack coming from all three branches.

 Posted by at 4:36 pm