Government encroachments on liberty, in the name of fighting terrorism

Commentary by James Shott

These days talk of government excesses is routine. A list of recent infractions contains things like the Internal Revenue Service using its resources to persecute applicants for non-profit status and the National Security Agency collecting data on every American’s phone calls and email.

Government excesses have been growing for a long time, and since 19 Muslim terrorists hijacked four airliners and successfully crashed three of them into the World Trade Center and the Pentagon on September 11, 2001, the U.S. has been taking strong measures to detect potential terrorist threats, and these are by far the most threatening excesses.

The first of these was the USA Patriot Act, created and passed less than two months after the 9-11 attacks, and signed into law by President George W. Bush. Things have not improved since that fateful law passed.

The problem with such measures is that while they may or may not help prevent a terrorist attack, they present a frightening opportunity for government abuse. Americans are rightly distrustful of such mechanisms, and our Constitution prohibits our government from adopting liberty-crushing measures like these.

The National Defense Authorization Act of 2012 (NDAA) was passed and signed into law by President Barack Obama, and greatly expanded the power and scope of the federal government to fight the War on Terror, including codifying into law the indefinite detention of terrorism suspects without trial. Including US citizens. Under the new law the US military has the power to carry out domestic anti-terrorism operations on US soil under the broad new anti-terrorism provisions provided in the bill.

This is not the first time such extraordinary misuse of the military has been considered. In 2002 a similar discussion arose, but was ultimately quashed by Mr. Bush.

Those features in the NDAA are unacceptable, even in the name of fighting terrorism. Prior to the NDAA the Posse Comitatus Act prohibited Federal military personnel and units of the United States National Guard under Federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. Americans also enjoyed the protections of the 4th Amendment to the United States Constitution. The intention was to prevent precisely what the 2012 NDAA enacted into law.

Nevertheless, Mr. Obama signed the NDAA into law, saying, “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

However, according to Michigan Democrat Senator Carl Levin, Mr. Obama demanded that American citizens be included under the detention law and that the President of the United States have exclusive authority to invoke the statute. “The language which precluded the application of Section [1021] to American citizens was in the bill that we originally approved…and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section,” Sen. Levin said after the NDAA was signed into law.

Critics all across the political spectrum rightly opposed the NDAA because of elements in section 1021.

While many government excesses and cases of misbehavior go along uninterrupted, a federal judge appropriately put a stop to the offending elements of the 2012 NDAA only months after it took affect.

Federal Judge Kathleen Forrest granted a preliminary injunction striking down those sections of the NDAA that sought to provide the president the power to indefinitely detain citizens without benefit of their rights.

Judge Forrest concluded that Section 1021 “…failed to ‘pass Constitutional muster’ because its broad language could be used to quash political dissent.” In a statement clearly directed to lawmakers, she added, ”Section 1021 tries to do too much with too little – it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass constitutional muster.”

The Obama administration, however, then fought successfully to appeal Judge Forrest’s injunction, and a 2013 version of the bill contains the same intolerable provisions as the 2012 version, and was also signed by President Obama.

Despite Mr. Obama’s comforting words, despite the bi-partisan opposition to section 1021, Mr. Obama demanded that language exempting America citizens and lawful residents from the provisions of Section 1021 be removed, he fought for and won keeping the Section alive in the 2012 version, and signed the 2013 version with those provisions contained in it.

No matter how much you may trust Mr. Bush, Mr. Obama, or any future president, no president can be allowed to have the absolute authority provided in the NDAA to detain citizens without due process, or to set the US military against the people. No individual can be allowed that authority. Ever!

There goes “innocent until proven guilty,” a major protection for citizens against tyranny. Erik Kain, writing on Forbes.com, says: “We’re talking about the stripping away of our most basic freedoms. We’re talking about a potential state that can call me a terrorist for writing this blog post and then lock me up and throw away the key.”

A majority of the US House and Senate approved these measures. Is this what you expect of your elected representatives?


Cross-posted from Observations

Federal government willfully breaches constitutional protections

Commentary by James Shott

On Aug. 16, 2012, Chesterfield County, Virginia police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Mr. Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page like millions of other Americans, to post items and comments, including his political opinions.

Without providing any explanation, levying any charges or reading him his rights, law enforcement officials handcuffed Mr. Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was forcibly detained in a psychiatric ward for a week against his will.

For having the temerity to express his opinions Mr. Raub was kept in custody for an evaluation based on the opinion of one Michael Campbell, a psychotherapist hired by local law enforcement that had never interviewed Mr. Raub, but somehow felt he was capable of determining that the former Marine might be a danger. Psychiatrists at the mental institution, however, found nothing wrong with him.

According to The Rutherford Institute, which is representing the former Marine, in a hearing on Aug. 20 government officials pointed to the Facebook posts as the reason for incarceration. While Mr. Raub stated that the Facebook posts were being read out of context, a Special Justice ordered that he be held up to 30 more days for psychological evaluation and treatment. But Circuit Court Judge Allan Sharrett ordered his immediate release a short time later because the concerns raised by the officers were “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.”

When the government’s case came before U.S. District Judge Henry Hudson in Richmond, Va., he dismissed it.

Mr. Raub then sued the officers for taking him into custody without sufficient cause and for his subsequent mistreatment. A request by the offending officers to dismiss the case against them has been rejected.

“Brandon Raub’s case exposes the seedy underbelly of a governmental system that continues to target military veterans for expressing their discontent over America’s rapid transition to a police state,” said John W. Whitehead, president of The Rutherford Institute.

“While such targeting of veterans and dissidents is problematic enough, for any government official to suggest that they shouldn’t be held accountable for violating a citizen’s rights on the grounds that they were unaware of the Constitution’s prohibitions makes a mockery of our so-called system of representative government. Thankfully, Judge Hudson has recognized this imbalance and ensured that Brandon Raub will get his day in court,” he said.

Judge Hudson has ordered limited discovery allowing Rutherford to demand what information federal and local authorities knew about Mr. Raub before he was detained for a mental evaluation.

The Institute called the decision a victory for free speech and the right to be free from wrongful arrest and presented facts indicating that the involuntary commitment violated Mr. Raub’s rights under the First and Fourth Amendments of the U.S. Constitution.

The complaint alleges that the attempt to label Mr. Raub as “mentally ill” and his subsequent involuntary commitment was a pretext designed to silence speech critical of the government.

A Richmond Times-Dispatch story noted: “Much of the information about Raub’s alleged mental condition was developed after his arrest and emergency mental assessment, but [Judge] Hudson notes in the opinion [allowing the suit against law enforcement officials] that “there is no indication that any defendant was aware of the specific contents of (emails and statements Raub was making) before Raub’s arrest."

Attorneys from The Rutherford Institute charge the seizure and detention were the result of a federal government program code-named “Operation Vigilant Eagle” that involves the systematic surveillance of military veterans who express views critical of the government, according to information on the Institute’s Web site.

Of “Operation Vigilant Eagle” the Wall Street Journal reports that “the Federal Bureau of Investigation [in 2009] launched a nationwide operation targeting white supremacists and ‘militia/sovereign-citizen extremist groups,’ including a focus on veterans from Iraq and Afghanistan, according to memos sent from bureau headquarters to field offices,” and that “a similar warning was issued … by the Department of Homeland Security.”

So, the FBI and Homeland Security view military veterans who have served in Iraq and Afghanistan like white supremacists and extremist groups, and then on flimsy or non-existent evidence, take them into custody and confine them for mental evaluation?

It will be interesting to see how the government and these agents defend their action at trial.

Many, perhaps most Americans, are well served by state and local law enforcement that behave within the law and respect the privacy and freedom of those they serve until evidence is presented warranting arrest. However, those who initiated and carried out the persecution of Brandon Raub, including the psychotherapist, deserve to be strongly disciplined and perhaps fined and criminally charged for their illegal and unconstitutional behavior, and when the case is resolved, maybe they will be.

Such a resolution would likely get the attention federal officials who improperly unleash the force of government against innocent citizens, and restore respectful treatment of citizens by the government that exists to serve them.

Cross-posted from Observations

Privacy under attack? Stop-and-frisk vs. NSA surveillance

As Americans, we each have a guaranteed right to privacy. The online legal site FindLaw explains it this way: “The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property – whether through police stops of citizens on the street, arrests, or searches of homes and businesses.”

That seems plain enough, but how one interprets the word “unreasonable” provides ample opportunity for mischief, as well as for good law enforcement.

As for good law enforcement, New York City Mayor Michael Bloomberg has credited the City’s stop-and-frisk policy with helping drive crime to record lows since the policing policy was implemented in 1994, with the murder rate falling by an astounding 82 percent by 2009.

New York’s stop-and-frisk policy seeks to prevent crime before it happens by deploying officers with pinpoint precision to critical street segments in high-crime areas where they interact with individuals displaying suspicious behavior: they approach, question, and sometimes frisk the individuals. That practice has led to fewer people, such as members of street gangs, risking arrest by carrying a weapon on their person, and with fewer gang bangers carrying weapons, there are fewer spur-of-the-moment shootings in New York, and correspondingly fewer deaths.

You might think that, given the obvious level of success in reducing the murder rate in the Big Apple, such a policy would fall outside the Fourth Amendment’s proscription against “unreasonable” searches. But you would be wrong, according to U.S. District Judge Shira Scheindlin, who believes that the policy indeed does violate the Fourth Amendment protection.

Mayor Bloomberg believes that the judge's decision will cause a reduction in the use of stop-and-frisk, which would reverse crime reductions and make his city a more dangerous place. And data indicates he is correct. In 2011, guns were used in 61 percent of all homicides, but in black neighborhoods 86 percent of young black males died from gunfire. Stop-and-frisk reduced the total number of deaths by reducing the number of guns on the streets.

The challenge to the policy arose because officers stop minority residents at a rate disproportionate to their number in the general population. But those stops are not disproportionate to the minority resident population in the crime-ridden neighborhoods or disproportionate to the number of crimes minorities commit in those neighborhoods.

As we have seen recently, there is the possibility that authorities may lose perspective and become abusive in the use of policies like this one, but supervisors are charged to competently manage their operation. And due to the depths of its crime problem when the policy was implemented, New York police applied stop-and-frisk more aggressively than other cities. But whether or not the City is too aggressive ought not be decided without considering its unique circumstances and surprising rate of success in reducing murders.

An opposite approach to systematically and thoughtfully targeting areas where crimes mostly occur and populations that most often commit them like New York City is doing is the blanket, indiscriminate, suspicion-less spying on telephone, email and other private communications and activities of millions of Americans by the National Security Agency.

The government’s spying on Americans is so egregious – eavesdroppers broke privacy rules or overstepped their legal authority thousands of times every year – it’s no wonder the administration wants to arrest and try Edward Snowden for making the information about its spying public.

Where New York police might appear to have been over-aggressive in implementing stop-and-frisk, the federal government’s policy itself is over-aggressive by design. Surely, observers familiar with the Fourth Amendment’s restrictions on searches would be unable to conclude anything other than that NSA spying is precisely why there is a Fourth Amendment.

As reported in The Washington Times, “A Top Secret internal NSA audit, leaked by Mr. Snowden to freelance journalist Barton Gellman earlier this summer and published online by The Washington Post Thursday night shows that, in the 12 months prior to May 2012, there were 2,776 incidents of ‘unauthorized collection, storage, access to or distribution of legally protected communications’ — those between Americans or foreigners legally in the United States.”

“Most were unintended,” according to The Post. “Many involved failures of due diligence or violations of standard operating procedure.” Even if the problems were unintended, sloppiness certainly is no excuse: The infringements are no less wrong, no less a breach of individual privacy, and no less intolerable.

The larger the scope of a program, the greater the chance that something will go wrong, and the more opportunities there are for something to go wrong. Congressman Peter King (R-NY) defends the program, saying that the situation is being blown out of proportion, that the rate of error is miniscule.

Maybe so; however, since the NSA program seeks to find a few fake grains of sand on a beach, and involves millions upon millions of records. For every million records, ten thousand mistakes can be made, affecting the privacy of ten thousand Americans, and the success rate is 99 percent.

Even if such gargantuan programs are run efficiently and competently, they are examples of unjustified government excess, and should not be allowed.