FLOTUS, the Internet, and Hypocrisy

by Gerard Emershaw

In a recent speech given while visiting China with President Obama, First Lady Michelle Obama stated that access to the Internet is a “universal right”: “When it comes to expressing yourself freely, and worshipping as you choose, and having open access to information—we believe those are universal rights that are the birthright of every person on this planet.” This was obviously aimed at the Chinese government, which does not protect freedom of speech on the Internet or anywhere else as well as at Turkey, whose government recently banned Twitter. The problem is that this smacks of hypocrisy given President Obama’s assault on the First and Fourth Amendments through the NSA.

It would be unfair to blame the First Lady for the actions of the President; however, the position of First Lady has grown into an unofficial job within the administration. Gone are the days when the First Lady just smiled for the cameras. Michelle Obama represents a new breed of First Lady—which began with Nancy Reagan and peaked with Hillary Clinton—who functions as a good will ambassador, Nanny State busybody, and propagandist for the White House.

While the Obama administration has not banned Twitter and does not censor the Internet in the dramatic way that China does, it chills free speech nevertheless. Knowing that the NSA is liking monitoring one’s Internet usage and communications, an American is less likely to express speech critical of the government than he or she would be otherwise.

Even if speech is not chilled by the well publicized and unconstitutional NSA presence on the Internet, how can this speech be truly free if there is no freedom to speech anonymously? Without the possibility of such anonymity, the First Amendment is null and void online. Furthermore, the NSA’s ability to spy on Internet communications without a warrant effectively makes the Fifth Amendment prohibition on self-incrimination null and void. While the FISA Court mandates that potentially incriminating evidence against Americans found during national security searches by the NSA are not to be used in criminal cases, American spy agencies distribute such information to other agencies via the Special Operations Division. Therefore, the NSA could easily provide potentially incriminating evidence that it unconstitutionally discovered online and provide it to other law enforcement agencies who can “launder” it, hiding its true unconstitutional source.

Thus, what First Lady Michelle Obama said in China is hypocritical. If the Obama administration continues allowing the NSA to do what it has been doing, then the United States does not truly respect the “human right” of Internet access. The Internet becomes a dangerous venue for potential criminal entrapment instead of the freedom conduit that it ought to be.

Highlights and Analysis of President Obama’s Appalling NSA Speech

by Gerard Emershaw

President Obama’s January 17, 2014 speech on NSA surveillance may cause some devoted progressives to claim that the Commander-in-Chief has seen the light on civil liberties. However, anyone who listened to the speech with his or her ears rather than a deaf progressive heart understands how the President said nothing encouraging in terms of willingness to fulfill his duty to defend the Constitution. 

1. Isn’t spying on our enemies different from spying on our citizens?

President Obama pointed out that the United States government has a long history of employing various types of surveillance in an effort to keep the nation and its citizens safe:

At the dawn of our Republic, a small, secret surveillance committee borne out of the “The Sons of Liberty” was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots. Throughout American history, intelligence has helped secure our country and our freedoms. In the Civil War, Union balloon reconnaissance tracked the size of Confederate armies by counting the number of campfires. In World War II, code-breakers gave us insights into Japanese war plans, and when Patton marched across Europe, intercepted communications helped save the lives of his troops. After the war, the rise of the Iron Curtain and nuclear weapons only increased the need for sustained intelligence gathering. And so, in the early days of the Cold War, President Truman created the National Security Agency, or NSA, to give us insights into the Soviet bloc, and provide our leaders with information they needed to confront aggression and avert catastrophe.

However, what the President failed to note is that spying on the Confederacy, the Axis Powers, and the Soviets were different than spying on American citizens with the NSA through the bulk collection of metadata. No rational American would criticize spying on dangerous enemy governments. The NSA and other American intelligence agencies can spy on China, Russia, and even allies such as Germany. These agencies can also spy on terrorist groups like Al Qaeda. But why do they need to spy willy nilly on American citizens?

2. Don’t bring up a cautionary tales if they don’t make you proceed with caution.

President Obama discussed the Constitution, the checks and balances built into the American form of government, totalitarianism, and past abuses by American intelligence agencies:

Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances—with oversight from elected leaders, and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.

In fact, even the United States proved not to be immune to the abuse of surveillance. And in the 1960s, government spied on civil rights leaders and critics of the Vietnam War. And partly in response to these revelations, additional laws were established in the 1970s to ensure that our intelligence capabilities could not be misused against our citizens. In the long, twilight struggle against Communism, we had been reminded that the very liberties that we sought to preserve could not be sacrificed at the altar of national security.

But what is the point of bringing up cautionary tales if these tales do not make you cautious? One of the most important checks against tyranny from the federal government has been the Fourth Amendment, yet President Obama did not refer specifically to it even once during his speech. He brought up Stasi East Germany, but he failed to recognized that the NSA, FBI, and CIA are beginning to resemble East Germany’s Stasi and that the Department of Homeland Security’s “see something, say something” campaigns have attempted to turn Americans into informers. The fact that the United States government has used its vast spying apparatus against its own people on so many occasions—COINTELPRO, Operation CHAOS, Nixon’s “Plumbers,” Project Shamrock, Project MKUltra, Operation Northwoods, etc.—should lead President Obama to realize how close the nation can come to becoming a totalitarian surveillance state.  It is one thing to say that “the very liberties that we sought to preserve could not be sacrificed at the altar of national security” and another thing entirely to mean it. Meaning it requires being ever-vigilant in preserving natural rights regardless of what threats—even if existential—the nation faces. Being truly aware of “cautionary tales” such as Stasi East Germany and the various violations of rights by American intelligence agencies which the Church Committee revealed in the 1970s means making it a priority to oversee these executive agencies. President Obama has at most given lip service to this responsibility. At worst he has cynically pretended to do it while in fact helping these security agencies violate Constitutional rights.

3. Neoconservative in Progressive’s clothing?

President Obama sounded like Vice President Dick Cheney or some member of a 1990s neocon think tank when he said:

If the fall of the Soviet Union left America without a competing superpower, emerging threats from terrorist groups, and the proliferation of weapons of mass destruction placed new and in some ways more complicated demands on our intelligence agencies. Globalization and the Internet made these threats more acute, as technology erased borders and empowered individuals to project great violence, as well as great good.  
     

Terrorist threats are overblown. Threats of the proliferation of weapons of mass destruction are also overblown. Unlike something from Fox’s “24” or a novel by the late Tom Clancy, “suitcase nukes” do not grow on trees. Nuclear weapons are difficult to create and difficult to maintain. Hostile or potentially hostile nuclear nations have every reason to avoid allowing any proliferation. While the United States has shown caution in getting involved with military confrontations with nuclear powers, does anyone doubt that if terrorists obtained and used a nuclear weapon and this weapon could be traced to North Korea, Pakistan, etc, that the United States would not respond with a “shock and awe” military strike against such a nation? Terrorism does not pose an existential threat to the nation as did the Axis during World War II or the nuclear armed Soviet Union during the Cold War. If anything, the United States should be doing less spying and not more. If anything, the American people are finally owed the peace dividend from the ending of the Cold War.

Like the ruthless yet clueless neocons in the administration that preceded his, President Obama shamelessly invoked 9/11:

The horror of September 11th brought all these issues to the fore. Across the political spectrum, Americans recognized that we had to adapt to a world in which a bomb could be built in a basement, and our electric grid could be shut down by operators an ocean away. We were shaken by the signs we had missed leading up to the attacks—how the hijackers had made phone calls to known extremists and traveled to suspicious places.

Adapt? How about not escalating the Afghanistan War? How about not unconstitutionally attacking Libya? How about not trying to gin up a war against Syria? How about watching China and Russia—who actually probably can shut down the electric grid—instead of watching ordinary Americans? How about paying attention to obvious signs like memos stating that Al Qaeda is poised to strike?

President Obama even shamelessly evoked the debunked lie about how 9/11 could have been prevented if the NSA had been bulk collecting metadata at the time:

Why is this [NSA bulk collection of metadata] necessary? The program grew out of a desire to address a gap identified after 9/11. One of the 9/11 hijackers—Khalid al-Mihdhar -- made a phone call from San Diego to a known al Qaeda safe-house in Yemen. NSA saw that call, but it could not see that the call was coming from an individual already in the United States. The telephone metadata program under Section 215 was designed to map the communications of terrorists so we can see who they may be in contact with as quickly as possible.

Without the bulk collection of metadata, the United States knew the identity of Khalid-al-Mihdhar well before 9/11 and knew exactly where to find him. They just failed to do so. The NSA, FBI, CIA, and their sister intelligence agencies in the federal government were all negligent prior to 9/11. Should negligent actors be awarded more power? If too much was slipping through the cracks then, why give these agencies even more hay—in the form of metadata—to obscure the needles for which they are searching?  

4. Pot, meet kettle.

President Obama pulled out one of his favorites from his bag of tricks—blaming President Bush:

And yet, in our rush to respond to a very real and novel set of threats, the risk of government overreach—the possibility that we lose some of our core liberties in pursuit of security—also became more pronounced. We saw, in the immediate aftermath of 9/11, our government engaged in enhanced interrogation techniques that contradicted our values. As a Senator, I was critical of several practices, such as warrantless wiretaps. And all too often new authorities were instituted without adequate public debate. 

As usual, the President did not let the facts get in the way of a good story. Enhanced interrogation? What is the difference between doing it and having some ally do it in a secret prison overseas after you have allowed terror suspects and others to be whisked away using extraordinary rendition? How was Bush’s warrantless wiretapping any worse than what the NSA has done on President Obama’s watch?

5. President Obama’s War on Whistleblowers will continue.

President Obama has been notoriously hard on whistleblowers. He assured us that he will continue to fight this war in earnest: 

And given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or his motivations; I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

Without whistleblowers, how would the people ever learn of abuses done by clandestine government organizations? One wonders if President Obama believes that Woodward, Bernstein, and Deep Throat should all have been prosecuted under the 1917 Espionage Act.

6. Friend of false dilemma.

President Obama implied time and time again that one can either accept that the NSA must violate Constitutional rights or one believes that the nation should disarm its intelligence agencies. This is the kind of black and white thinking that made President George W. Bush infamous. It turns out that President Obama is also skilled in such fallacious thinking:

First, everyone who has looked at these problems, including skeptics of existing programs, recognizes that we have real enemies and threats, and that intelligence serves a vital role in confronting them. We cannot prevent terrorist attacks or cyber threats without some capability to penetrate digital communications—whether it’s to unravel a terrorist plot; to intercept malware that targets a stock exchange; to make sure air traffic control systems are not compromised; or to ensure that hackers do not empty your bank accounts. We are expected to protect the American people; that requires us to have capabilities in this field. Moreover, we cannot unilaterally disarm our intelligence agencies.

Who was suggesting that the United States disarm its intelligence agencies? This is like saying that anyone who opposes unnecessary and unconstitutional uses of military force believes that the United States should disarm its military and throw up the white flag to its enemies around the globe. President Obama again and again misses the point. Surveilling foreign governments and terrorists is necessary. Nobody is denying that. But why does that mean that the NSA should be collecting information on citizens domestically without probable cause or even suspicion? Why is the federal government targeting American citizens at all when all the 9/11 plotters were foreign?

7. No such thing as double standards.

President Obama claimed that employees of the NSA and other intelligence agencies can be trusted because they are just like us:

Second, just as ardent civil libertarians recognize the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse as intelligence capabilities advance and more and more private information is digitized. After all, the folks at NSA and other intelligence agencies are our neighbors. They're our friends and family. They’ve got electronic bank and medical records like everybody else. They have kids on Facebook and Instagram, and they know, more than most of us, the vulnerabilities to privacy that exist in a world where transactions are recorded, and emails and text and messages are stored, and even our movements can increasingly be tracked through the GPS on our phones.

Uh, members of the Gestapo, the KGB, and the Stasi were just like ordinary Germans, Soviets, and East Germans. So why did members of those organizations not “readily acknowledge the potential for abuse?” Could it be that members of spy agencies have the ability to exempt themselves and their family members? What is to prevent members of the NSA from formulating a policy of not surveilling employees, friends, and family of the agency? If Obamacare has taught us anything, it is that the President has no trouble with making unjustified exceptions to rules. So why not here as well?

8. Okay, I’m a crook, but look at that bigger crook over there!

President Obama essentially acknowledged that the federal government is violating the privacy of its citizens, but he distracted his audience by pointing to another culprit:

Third, there was a recognition by all who participated in these reviews that the challenges to our privacy do not come from government alone. Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes; that’s how those targeted ads pop up on your computer and your smartphone periodically. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: Trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

It is no secret that President Obama the corporatist does not like business—unless it is a business that gives campaign contributions to his party. He basically said: “Hey, the corporations are violating your privacy, too!” So what? He claims that the government should have a higher standard. But the thing is that the government is becoming unaccountable. One has a choice whether or not to do business with a corporation that violates privacy. If you do not like the policies of Facebook, then you can delete your account. If you think that Google is probing too much, then you can use other websites and online services. If you think that Amazon is spying too much on your internet activity, then you can shop elsewhere. The bottom line is that there is at least a small check against private businesses in that angry customers and others can boycott them. The two major political parties are two sides of the same rotten penny, so “throwing the bums out” will not do a thing.

9. Playing the King card.

President Obama, as he often does, referenced Martin Luther King:

In fact, during the course of our review, I have often reminded myself I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied upon by their own government.

How are those like Snowden and Manning not dissidents? At this point it seems likely that if Martin Luther King were still alive, President Obama would be spying on him. It is also plausible that Reverend King might be facing a charge under the 1917 Espionage Act or living in forced exile.

10. Fox guarding the hen house.

President Obama promised greater executive oversight:

First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. 

President Obama has hardly proven himself to be a friend of the Constitution. The centerpieces of his presidency—Obamacare and the Libyan “kinetic military action”—both involved egregious violations of the Constitution, so how can he be trusted to provide adequate oversight?

11. Most transparent administration.

President Obama also claimed that there will now be more transparency:

Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons.

The President has claimed time and time again that his is “the most transparent” administration ever. Repeating this claim over and over does not make it any more true—or any less ridiculous. The Obama administration has been anything but transparent with its army of lawyers fighting Freedom of Information Act requests, its War on Whistleblowers, its secretive drone campaign, etc. However, even if he does turn over a new leaf, transparency is not enough. Being transparent about the violation of rights does not make those actions any less unconstitutional.

12. Whatever happened to probable cause?

The Fourth Amendment states that warrants shall not issue without probable cause. President Obama defended the NSA bulk metadata collection program by stating:

This brings me to the program that has generated the most controversy these past few months—the bulk collection of telephone records under Section 215. Let me repeat what I said when this story first broke: This program does not involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls—metadata that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.

In sum, the program does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead—a consolidation of phone records that the companies already retained for business purposes. The review group turned up no indication that this database has been intentionally abused. And I believe it is important that the capability that this program is designed to meet is preserved.

Reasonable suspicion? Whatever happened to probable cause? It is the reasonable suspicion standard which causes the greatest problem. If the government has all this data in a big database and can dig deep into it with merely a claim of reasonable suspicion, then there is simply no way to protect the rights of American citizens. Unless and until the Fourth Amendment is fully restored and probable cause is again treated as the exceptionless standard it was intended by the Founders to be, then no safeguards will help.

13. Fascism or corporatism? Take your pick.

President Obama suggested two possible reforms to NSA bulk collection of metadata:

The review group recommended that our current approach be replaced by one in which the providers or a third party retain the bulk records, with government accessing information as needed. Both of these options pose difficult problems. Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns. On the other hand, any third party maintaining a single, consolidated database would be carrying out what is essentially a government function but with more expense, more legal ambiguity, potentially less accountability—all of which would have a doubtful impact on increasing public confidence that their privacy is being protected.

Six of one, a half dozen of the other. What difference does it make if the NSA itself has this data or some third party does? Furthermore, such collaboration between government and private entities in such nefarious matters just stinks of fascism or corporatism. When government and corporations collaborate in such a manner, the only question is which one is steering the unconstitutional bus that is about to run over the people. This all begins to feel like a shell game. The NSA will unconstitutionally get this data and will be able to access it on demand. What does it matter where it is stored or who is storing it?

14. Didn’t you hear my lies the first time?

President Obama began to wind up his speech by again repeating a dubious claim:

The bottom line is that people around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures.

The NSA is collecting metadata on essentially everyone. That is the definition of spying. And since everybody is not threatening American national security, the President’s statement is simply not true.

15. Beware that, when fighting monsters, you yourself do not become a monster.

President Obama concludes with some language which in another context would be inspirational:

As the nation that developed the Internet, the world expects us to ensure that the digital revolution works as a tool for individual empowerment, not government control. Having faced down the dangers of totalitarianism and fascism and communism, the world expects us to stand up for the principle that every person has the right to think and write and form relationships freely—because individual freedom is the wellspring of human progress.

However, President Obama and all future presidents must take heed. The United States did in fact help defeat the evils of fascism and communism, but there is the danger that fighting such monsters could turn the nation into such a monster. Perhaps it has already happened.

Scalia Is No Friend of the Right to Privacy

by Gerard Emershaw

The flood of shocking revelations about the NSA resulting from the whistleblowing of Edward Snowden will inevitably land issues concerning the surveillance state, national security, the Fourth Amendment, and the right to privacy before the Supreme Court. With the current makeup of the court, this does not bode well for civil liberties. Earlier this year, in Clapper v. Amnesty International, the Supreme Court held that the plaintiffs in the case could not challenge the NSA’s warrantless wiretapping because they lacked standing. They lacked standing because they could not show that they were harmed by the program. However, the proof that a plaintiff would need to show that he or she is affected and harmed by the NSA program is classified. Therefore, as long as the NSA keeps this information secret, it is impossible for anyone to sue. This alone is enough to signal to civil libertarians that any NSA case decided in the near future is not going to end well. But, it appears that the prospects for the right to privacy may be even worse.

Justice Antonin Scalia recently spoke before the Northern Virginia Technology Council and told them that he believed the Court would soon be hearing cases connected with the NSA. Justice Scalia appears to be less than thrilled about having to hear such cases. He believes that elected branches of government are better equipped to deal with such issues. However, the Supreme Court opted, beginning in the 1960s, to expand its power in hearing cases concerning the right to privacy. According to Justice Scalia, this was not wise:

The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed.

Justice Scalia told his audience that prior to cases like Katz v. United States (1967), the Court held that there were no constitutional constraints on wiretaps because the Court believed that the Fourth Amendment did not apply in such cases and gave no protection at all to conversations. Justice Scalia then lamented the fact that the Warren Court stepped in on the issue and explained that the Warren Court found that “there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.” This does not sound like a jurist who believes in the right to privacy.

The landmark case that established the constitutional right to privacy is Griswold v. Connecticut (1965). In this case, the Supreme Court ruled that a Connecticut law outlawing contraceptives was unconstitutional. In William O. Douglas’s majority opinion, he speaks of why the constitutional right to privacy was recognized:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Scalia, obviously, is unimpressed by this. However, despite his ingenuity, Justice Douglas could have stopped after a quick discussion of the Ninth Amendment. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, just because a natural right is not specifically enumerated in the Constitution, it does not mean that the people do not possess that right in virtue of their humanity.

One source of evidence concerning the existence of a natural right to privacy is tort law. In 1960, legal scholar William L. Prosser documented the right to receive damages under the common law for invasions of privacy. Four distinct privacy torts have developed: 

1. Intrusion upon seclusion or solitude, or into private affairs;

2. Public disclosure of embarrassing private facts;

3. Publicity which places a person in a false light in the public eye; and

4. Appropriation of name or likeness.

This provides strong support for the existence of a right to privacy. If an individual can exert this right against his or her fellow civilians, then he or she should also be able to exert these rights against the government.

Furthermore, the aspects of the right to privacy which concern wiretaps and other advanced technological forms of electronic intrusion used by the NSA, FBI, etc., are fully encompassed by 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.

While the Founders did not contemplate things such as wiretaps and other surveillance telephone lines, cellphones, the internet, etc., they did institute the requirement that a search cannot take place without a specific judicial warrant issued upon probable cause. While the Supreme Court has disputed this in recent decades, this is simply an indication that they are either not careful readers or they simply wish to create constitutional law that does not exist.

When a person is in a place of privacy and has a conversation with a companion—whether this is a face-to-face conversation or an electronic conversation via a phone or the internet—the content of that conversation is akin to his or her person. The words—whether spoken into the air, spoken into a telephone, or typed—are inseparable from the person in that searching the words is akin to searching the speaker of the words. Therefore, since persons are protected by the Fourth Amendment, so are conversations. Furthermore, modern forms of communication such as phone calls, text messages, e-mail, and instant messages are secondarily covered by the Fourth Amendment because they can only be achieved through the use of telephones, cellphones, or computers. These items are clearly “effects”—movable belongings. Given that the Fourth Amendment guarantees the protection of persons and effects, private conversations of all types are clearly protected. Unfortunately, this is not the way that Justice Scalia and a likely majority of his colleagues will see it.

The Disconcerting Disconnect: 63% of Americans Believe that NSA is Lying About Data Collection Yet 50% Still Approve of the Program

by Gerard Emershaw  

  
According to a Pew Research Center poll released on July 26, 2013, 56% of Americans believe that the courts have not provided adequate limits on what is collected by the NSA. In addition, 70% of those surveyed believe that the government is using the data collected by the NSA for purposes other than anti-terror. Even more interesting is that 63% of those surveyed believe that the government has been lying about the NSA collecting only metadata and believe that the NSA is in fact collecting what is being said in phone calls and e-mails. However, the most interesting result from the Pew poll on the NSA is that 27% of those surveyed believe that the government has specifically listened to their phone calls or read their e-mails.

Overall, 47% of Americans believe that government anti-terror policies have gone too far in restricting civil liberties while 35% believe that government anti-terror policies have not gone far enough to protect the country. This marks a major change from recent American attitudes on this issue. In 2010, 58% of Americans surveyed in a similar Pew Research poll said that government anti-terror policies had not gone far enough to protect the country while only 27% said that these policies went too far in restricting civil liberties. 

Statists and die hard Obama apologists are likely to say that all this simply means that Tea Party blowhards and tin foil hat wearing paranoids are scaring many Americans with disinformation. Civil libertarians are likely to say that this poll data indicates that many Americans are waking up and realizing the prescience of Senator Frank Church's 1975 warning about the NSA:

"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."

Despite all this, half of those surveyed still voiced support for the NSA surveillance program while only 44% indicated disapproval. Why the disconnect? If so many believe that the NSA is lying and so many believe that the courts are not doing enough to protect Americans from the NSA, then how can half support the NSA data collection program?

This apparent disconnect begins to make more sense when we examine approval/disapproval of the NSA data collection program among members of the two political parties. Among Republicans, 44% approve and 50% disapprove. Among Independents, 47% approve and 48% disapprove. Among Democrats, 57% approve and 36% disapprove.

Do you see what is going on here? If you are a staunch supporter of the GOP, don't bash Democrats just yet. In a 2006 Pew Research Poll conducted on American attitudes toward the Bush warrantless wiretap program, 75% of Republicans approved while only 37% of Democrats approved.

Now it all begins to make sense. It also all begins to be even more sickening. What Democrats and Republicans both seem to agree on concerning unconstitutional violations of the Fourth Amendment by the NSA is that such dastardly actions are perfectly fine as long as their party's candidate is sitting in the Oval Office. In essence, for far too many Americans, fidelity to the Constitution does not matter as much as whether the commander-in-chief is a donkey or an elephant. For these citizens, politics is akin to sports. For the Yankees fan, when a Red Sox player steals signs from the Yankees catcher, he is a dirty cheater. However, for that same fan, when a Yankees player steals signs from the Red Sox catcher, he is playing heads up baseball. But the machinations of politicians and security agencies are not the same as the antics of professional athletes. Far more is at stake. For most of us, the outcome of a sporting event has little effect on our lives. We cheer or groan when the game is over and then move on. However, the malfeasance of security agencies like the NSA has profound effects on our privacy, our rights, and our freedom. 

When rabid partisanship becomes more important than Constitutional principles and natural rights, then the nation has devolved into a system of tyranny of the majority. When this happens, the nation has transformed into a democratic banana republic. When a party is in power, it can oppress its opponents to its heart's content. While members of the minority party may not like this, they just have to grin and bear it until the next election. When their party regains control of the White House, then it's pay back time!

But is this the kind of country we want? Is this variety of political moral relativism a good thing? Isn't the moral rightness or wrongness of an action independent of whether the actor is a donkey or an elephant? Isn't the Constitution and the natural rights that it upholds more important than which party's candidate is living at 1600 Pennsylvania Avenue? The danger created by the widespread worship of political parties is one which threatens every American.

The Face of Moderate GOP Fascism

by Gerard Emershaw

"Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue."

Barry Goldwater

The House of Representatives very nearly won a battle in the war to preserve the Fourth Amendment, and Republican New Jersey Governor Chris Christie is furious about it. Last week the House voted 217 to 205 against a bipartisan bill sponsored by Republican Justin Amash and Democrat John Conyers which would have defunded the fascistic and out of control NSA, preventing it from further destroying what is left of Fourth Amendment protections. Celebrity RINO Chris Christie wasted no time in denigrating freedom when contemplating this close call:

“As a former prosecutor who was appointed by President George W. Bush on Sept. 10, 2001, I just want us to be really cautious, because this strain of libertarianism that’s going through both parties right now and making big headlines, I think, is a very dangerous thought.”

The fact that Governor Christie was appointed as a federal prosecutor by the incompetent President George W. Bush whose administration was infested with radical Trotskyite war criminals indicated that Christie was likely not a champion of civil liberties. This anti-liberty hissy fit verified it. The idea of liberty is always dangerous to tyrants. It was dangerous to King George in the 1770s and it is equally dangerous to President Obama now.

Christie has dismissed the current privacy/national security debate as "esoteric." What precisely is it about the issue that makes it only understandable by a small circle of elites? The Fourth Amendment of the Constitution is anything but esoteric. Its language is so straightforward that anyone can understand it.

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

In order to violate the privacy of a person by conducting a search, the government must get a warrant. Why is that esoteric? What is it that Governor Christie finds so difficult about the concept?

Governor Christie (like his fellow RINO Rudy Giuliani) also fetishizes 9/11 and uses the emotionality that the tragic terrorist event produces as a sledgehammer to smash dissent. "I think what we as a country have to decide is: Do we have amnesia? Because I don’t,” Christie said. “And I remember what we felt like on Sept. 12, 2001."

How did we feel on September 12, 2001? Shocked, frightened, and angry. But we still had our natural right to privacy protected by the Fourth Amendment. Why does Governor Christie believe that the American people should lose their right to privacy because terrorists attacked the United States and incompetent politicians and federal agents failed to stop it? Why should innocent Americans be punished for the crimes of others? A Stasi police state was not necessary to prevent the 9/11 attacks. Due diligence on the part of the Bush administration and the FBI would have nipped the hijacking plot in the bud. So why is a police state necessary now?

Like most RINOs, Governor Christie personifies an unhealthy kind of bipartisanship. For example, Christie publicly admires the fascistic policies that both President Bush and President Obama have employed in waging their bogus War on Terror.

“I want to say that I think both the way President Bush conducted himself and the way President Obama has conducted himself in the main on those types of decisions hasn’t been different because they were right and because we haven’t had another one of those attacks that cost thousands and thousands of lives."

Governor Christie believes that another attack like those on 9/11 has not occurred because of the fascistic police state that has developed as a result of the USA PATRIOT Act and related legislation. A much simpler and better explanation is that there are simply not that many terrorists in the United States and that a deadly large scale terrorist attack is very difficult to carry out.

The mainstream media has demonized the Tea Party and the libertarian wing of the Republican Party in recent years for dissenting against the economic and national security tyranny of the Obama administration. Obstructionism is condemned even when it is the result of standing up for liberty. Bipartisanship is praised even when it involves a cooperative effort to shred the Constitution.

If Governor Christie is the future of the GOP, then the era of the blue/red divide in American politics may come to an end. The "do nothing" Congress will become energized and accomplish great feats of bipartisanship. However, this bipartisan cooperation will lead to an even more oppressive police state where the NSA, FBI, and CIA violate the privacy of Americans in ways that the East German Stasi could not even have imagined.

Chris Christie and Hillary Clinton and two sides of the same oppressive collectivist coin. If Governor Christie becomes the GOP standard bearer in 2016, then there is very little point in even holding a presidential election.

Katz Out of the Bag: The Diminishment of the Expectation of Privacy

The Supreme Court’s doctrine on the expectation of privacy was first stated in a concurring opinion by Justice John M. Harlan II in Katz v. United States (1967). The case involved a man who was arrested after making illegal wagers from a public phone booth after FBI agents used an electronic eavesdropping device to record his conversation. The Court threw out the conviction and held that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Justice Harlan’s concurring opinion created a test – that was later adopted by the Court in Smith v. Maryland (1979) – for determining whether a government search is reasonable under the Fourth Amendment. This test contains two parts. First, “a person [must] have exhibited an actual (subjective) expectation of privacy,” and second, that “expectation [must] be one that society is prepared to recognize as ‘reasonable.’” The problem with this is the second part of the test. Americans are likely to expect less and less privacy as time goes by. Technological innovation has had a hand in causing society to expect less privacy. Americans by and large now expect that the government may be spying on them at any given time. Americans expect that the government is monitoring their phone calls and internet usage. As more advanced spy satellites and drones enable the government to spy on individuals at any time and in any place, society will inevitably lose any expectation of privacy. Why should a natural right be so dependent upon advances in technology? Why should a human being in the early twenty-first century have a less robust right to privacy than a human being in the eighteenth century? Why should human beings in the future have a less robust right to privacy than human beings do today?

In Kyllo v. United States (2001), the Court carved out a potentially greater sphere of privacy for the home. The case involved police using a thermal-imaging device – a camera that shows heat images – to detect heat from high-intensity lights used to grow marijuana. In a 5 to 4 decision that did not break according to party lines, the Court held that the use of a thermal-imaging device constitutes a search under the Fourth Amendment, and thus, requires a warrant. The Court stated that where “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” The problem with this was stated in Justice John Paul Stevens’ dissenting opinion in which he points out:

Despite the Court’s attempt to draw a line that is “not only firm but also bright,” the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is “in general public use.” Yet how much use is general public use is not even hinted at by the Court’s opinion, which makes the somewhat doubtful assumption that the thermal imager use in this case does not satisfy that criterion. In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.  

Stevens also points out that at the time of the decision there had been thousands of thermal-imaging devices manufactured and that the device was “readily available for the public” in that it could be rented by anyone who wanted one from a half dozen national companies. If thermal-imaging scanners were not “in general public use” in 2001, it seems that they will be soon. Perhaps they already are.  

One of the greatest threats to privacy in the near future is likely to come from surveillance drones. Presently small drones can be purchased for $1,000, and larger drones which can operate in inclement weather can be purchased for $12,000. In 2012, Congress allocated $63.4 billion to allow the Federal Aviation Administration to modernize air traffic control systems and to expand airspace for unmanned drones within three and a half years. It would be foolish not to expect American skies to eventually be filled with both government and commercial drones. As drones begin to proliferate, the expectation of privacy both in public and in the home will be diminished by the terms of both Katz and Kyllo. In 2011, MIT researchers devised technology using microwaves that allows users to see through walls in real time. It is only a matter of time before technology like this is commonplace and employed by both government and commercial drones. As Americans become resigned to the fact that they do not have privacy even within their own homes, the Fourth Amendment will no longer apply to governmental use of drones employing technology to see through the walls of homes.  

In the totalitarian police state of George Orwell’s terrifying dystopian novel 1984, “nothing was your own except the few cubic centimeters inside your skull.” Unfortunately, technology could one day create a state of affairs where even the privacy of the thoughts of Americans is not protected by the Fourth Amendment. While using brain scans to determine whether an individual is telling the truth or what thoughts a person are thinking seem to be fanciful subjects more at home in science fiction stories than in American court rooms, advocates of new technologies claim that “mind reading” technology is on the horizon. One such technology is the Brain Electrical Oscillations Signature test (BEOS), which was developed by Champadi Raman Mukundan, an Indian neuroscientist. BEOS uses an EEG and proprietary software.

The software tries to detect whether, when the crime's details are recited, the brain lights up in specific regions – the areas that, according to the technology's inventors, show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. The inventors of the technology claim the system can distinguish between peoples' memories of events they witnessed and between deeds they committed.

While experts unanimously agree that the experimental evidence demonstrating the effectiveness of BEOS is dubious at best, this did not prevent an Indian court from using BEOS evidence in convicting a woman formurder in 2008.

Another potential “mind reading” technology is the functional magnetic resonance imaging (fMRI) scanner. The fMRI has the potential to be used as a more technologically advanced and more Orwellian polygraph:

Feroze B. Mohamed, an associate professor of radiology at Philadelphia's Temple University, conducted an experiment in which he instructed some test subjects to fire a pistol and then falsely answer questions about the event while undergoing fMRI. Compared to others who truthfully said they did not fire a weapon, the liars showed increased activity in twice as many brain regions, including those associated with memory, judgment, planning, sentence processing and inhibition. The findings lend credence to what we've all realized at one time or another: It takes a lot more effort to lie than to tell the truth.

While technology like BEOS and fMRI are likely nothing but “snake oil,” it hardly matters if the government eventually comes to believe that these devices or others like them are accurate. The Supreme Court addressed the use of polygraphs in UnitedStates v. Scheffer (1998). In that case, the Court was unwilling to formulate a rule that polygraph evidence should be inadmissible in American courts.  Therefore, there is no precedent that would necessarily rule out the use of “brain scanning” evidence in the future.

Assume for the moment that one day small handheld “brain scanners” become commonly used. Assume also that although “mind reading” is likely logically impossible, that these devices become widely accepted as accurate. In such a state of affairs, Americans will eventually stop believing that the expectation of the privacy within their own brains is reasonable. If the Court does not overturn the Katz test, then in this future “Brave New World,” the Court will be obliged to hold that human beings no longer have the reasonable expectation of the privacy of their own thoughts and that the use of such “brain scanners” by government agents does not constitute a search for the purposes of the Fourth Amendment. Fanciful? Yes. But possible? Yes. And scary? Definitely.   

The Police, the Fourth Amendment, and the New Writs of Assistance

“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 wording of the Fourth Amendment is unambiguous in not contemplating warrantless searches. There is no mention of warrantless searches. The first clause sets forth the idea that the natural right to privacy will be defended by the Constitution. The second clause states how this defense is to be realized by stating the warrant requirement for searches and specifying the necessity of probable cause. If the authors of the document had intended to allow for warrantless searches, then certainly they would have mentioned it.

The Founders had a strong motivation to protect Americans against unreasonable governmental searches and seizures. One of the “sparks” that ignited the American Revolution was the widespread use of Writs of Assistance by the British Crown in the Colonies. Writs of Assistance permitted British custom agents to search any place in which smuggled goods might be concealed without any particular suspicion that the goods were there. Writs of Assistance were self-written by British soldiers and officials and allowed them to capriciously demand entry into any Colonial business or home. The original purpose of the Writs of Assistance was to allow enforcement of the Stamp Act, which mandated that every official piece of paper held by Colonists bear the King’s stamp. While the purpose of the Writs of Assistance was limited in scope, once inside a business or home, the King’s officials would often intrude into further matters. In effect, any British soldier or official could, on any whim, completely search a Colonial business or residence for anything without the slightest probable cause. The Fourth Amendment provided important safeguards by requiring particularity in the place to be searched and the items to be searched for and requiring that a judge issue the search warrant.

The Supreme Court has gradually allowed a number of exceptions to arise in which no warrant is necessary provided that the search is deemed “reasonable,” reducing the importance of warrants and slowly but surely bringing the nation dangerously close to a return of Writs of Assistance. The Court has held that “searches conducted outside the judicial process, without prior approval by judge or magistrate,are per se unreasonable.” Unfortunately, the Court has come to recognize so many exceptions to this rule that search warrants have become almost a non-issue. Once inside a building, police may legally seize any incriminating evidence that is in “plain view” provided that its incriminating character is “immediately apparent” and that the officer has “a lawful right of access to the object itself.” While seemingly reasonable, the plain view doctrine makes fishing expeditions extremely likely. How can it be proven that a drawer containing something incriminating was actually open when the authorities arrived on the scene? How can it be proven that the authorities did not plant key evidence whose incriminating character is “immediately apparent?” In plain view cases, a search warrant has already been legally issued. However, there are “exigent circumstances” in which police may enter and search without any search warrant. These “exigent circumstances” include pursuing a fleeing felon, the imminent destruction of evidence, the need to prevent the escape of a suspect, or the risk of danger to the police or any persons inside or outside the building. Again, these exceptions seem prima facie reasonable, but what is to prevent overzealous officers from falsely claiming that they heard something indicating danger or the destruction of evidence? Kentucky v.King (2011) in effect gave the government all the powers that the British Crown had with Writs of Assistance. In this case, the Court ruled that officers may enter a residence without a warrant or probable cause if they smell marijuana and hear “scurrying” indicative of the destruction of drugs. All that is necessary is that the police knock first and announce their presence. Therefore, if marijuana is illegal in a given jurisdiction, then any officer may enter any building at any time without a warrant or probable cause and then use – or abuse – the plain view doctrine to go on a fishing expedition for any and all potentially incriminating evidence. Perhaps the American Revolution was not ultimately as successful as had been thought.

Why the TSA’s Search Procedures Are Unconstitutional

The TSA can claim the legal right to circumvent the Fourth Amendment on the basis of the 1973 case U.S.v. Davis where the Ninth Circuit Court of the United States provided the power for the federal government – or the airlines themselves – to search anyone whom they choose. Davis involved a man who was convicted of attempting to board a flight while carrying a concealed weapon. The weapon – a loaded revolver – was found inside the man’s briefcase by an airline employee during a search of the passenger’s carry-on luggage. The Ninth Circuit held that searches of passengers and their luggage – akin to the kinds of searches down today by the TSA – do not violate the Fourth Amendment. According to the Court, “searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.” The Court found that screening searches such as those conducted on Davis’ luggage in the case at hand – or by extension, pat down searches or the use of scanners by the TSA – are Constitutional.

[S]creening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.

The Court laid down three main criteria that a screening search must satisfy in order to be Constitutional. These criteria are that “the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.” The heavy handed tactics of the TSA are likely to pass the Davis Test and to be upheld as constitutional by any federal court if the TSA’s methods are challenged given that the federal courts – especially the Supreme Court – have a strong tendency to defer to the legislative and federal branches of government in such matters.

However, it can be argued that current TSA methods satisfy none of the three criteria of the Davis Test. First, “current technology” must not be construed to refer to only the latest in technological gadgets such as advanced whole-body imaging scanners. “Technology” also refers to the latest in intelligence techniques. The state of the art when it comes to airport security intelligence techniques are those employed at airports in Israel. Few airline passengers in Israeli airports are frisked at all, and these airports contain no whole-body imaging scanners. Israeli airport security personnel scoff at the ridiculous exploits of the TSA. “Taking the bottle of water from the 87-year-old woman at JFK, you will never find an explosive material that is coming from bin Laden,” Shlomo Harnoy, head of the Sdema Group – an Israeli security consultancy that advises airports abroad – snarked. “You are concentrating on the wrong thing.” Instead of treating each and every passenger – whether a child or a feeble elderly person in a wheelchair – as the next Mohamed Atta, Israeli airport security techniques rely upon profiling. While most passengers at Israeli airports go through security without effort, some passengers are pulled aside and subjected to extensive searches and screening. According to Pini Shif – a founder of the security division at Ben Gurion International Airport outside Tel Aviv – an estimated “2 percent of passengers flying from the airport are subject to themore intensive screening.” Of course, use of the Israeli method would not be uncontroversial if the TSA were to employ such methods. For example, young men who appear to be of Arabian descent or appear to be dressed in traditional Muslim attire would likely receive greater scrutiny than elderly Hispanic women or middle-aged Black men. If not carried out with careful attention and great sensitivity, such “racial profiling” would be problematic. Nevertheless, there is no denying that such men do fit the typical profile for airplane hijackers. However, one cannot deny that such profiling is often done by law enforcement or that such profiling is often rational. When searching for members of the Mafia, Italian men are undoubtedly singled out. When searching for members of the Triads or the Yakuza, Asian men are undoubtedly singled out. When searching for members of White Supremacist groups, Caucasian men are undoubtedly singled out. When searching for members of street gangs such as the Bloods or Crips, Black men are undoubtedly singled out. And so on and so forth. The fact that a 9/11 type attack has not occurred in Israel attests to the success of the Israeli methods of airport security. Arabs – who make up about twenty percent of the Israeli population – are subjected to greater scrutiny in Israeli airports than Jewish passengers. However, the fact that such a small percentage of Israeli airline passengers are subjected to heightened scrutiny indicates that widespread racist profiling of Arab passengers in Israeli airports is not taking place.  

One may object that it would be impractical if not impossible for the United States to adopt Israeli-style security at its airports. For example, Homeland Security Secretary Janet “Big Sis” Napolitano has pointed out the great differences in size between the United States and Israel. The United States has airport traffic that is approximately 70 times greater than that of Israel and has 450 major airports while Israel has only one. There is no denying that if the TSA transitioned into using Israeli-style airport security measures that it would initially be expensive. However, naked body scanners are not exactly inexpensive. Perhaps no lobbying groups with ties to Washington run organizations that are able to train TSA officers the appropriate Israeli security intelligence techniques, but that is no excuse. With an annual budget of over $8 billion, the TSA can certainly find the money in its coffers in order to enact security methods that are clearly superior. Furthermore, the Patriot Act allows for what appears to be unlimited funding to fight the “War on Terrorism,” so the cost of better methods to fight terrorism can hardly be considered an obstacle.

  

The TSA also does not confine its searches of passengers in good faith to the goal of detecting potential hijackers. It will be argued below that the TSA engages in a sadistic campaign of abuse of travelers for the purpose of terrorizing the populace and “training” them to accept future intrusions and violations of their civil liberties. There is no good faith involved when infants and handicapped adults are treated like terrorists.

Finally, the TSA does not provide travelers with the option of avoiding screening by opting not to fly. In November of 2010, the TSA announced that it can fine individuals $11,000 for walking away from the screening process and deciding not to fly. The possibility of paying an $11,000 fine is hardly the freedom not to travel. In order to impose such a fine, an arrest would be required, and therefore, a search would be conducted incident to arrest. In essence, the TSA can prevent anyone from exercising the right not to travel that the Davis Test requires. Hence, the TSA’s screening procedures fail each prong of the Davis Test, and as such, these procedures violate the Fourth Amendment.