4th Amendment Civil Rights Current Events Surveillance Uncategorized

Restore the Fourth

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If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.” Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to “the Fourth” is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the PATRIOT Act. The PATRIOT Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data.

Bulk collection of data – the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements and credit card bills – is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T and Google.

What’s wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

The Fourth Amendment requires evidence – called probable cause – about a particular person, place or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must “particularly descr(ibe) the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all persons’ bodies, houses, papers and effects.

Yet the PATRIOT Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.

The purpose of the Fourth Amendment is to prohibit government fishing expeditions, common to totalitarian countries. The theory of the Fourth Amendment is that a restrained government – restrained by an instrument the government cannot change, like the Constitution – is essential if people are to be free. The natural right protected by the Fourth Amendment is the right to be left alone.

Enter Restore the Fourth.

Restore the Fourth is a movement gaining steam now because the section of the PATRIOT Act that is so constitutionally offensive expires on May 31. President Obama wants it extended so his spies can continue their bulk collection of data. The Republican leadership in the Senate agrees with the president and accepts the myth that less freedom equals more security. The Republican leadership in the House has proposed a Band-Aid that would require the telecoms and computer service providers to sit on bulk data until the feds come calling, but to surrender it without the judicial finding of probable cause or specificity.

The PATRIOT Act should be repealed because it violates the Constitution and it doesn’t keep us safe. It renders us less safe and less free. The indiscriminate unconstitutional bulk collection of data is far too much raw material even for the 60,000 NSA agents and contractors to navigate. We saw that as recently as last weekend, when two jihadists known to the FBI and who had used email and cellphones attacked a free speech symposium outside of Dallas and were stopped at the last minute by courageous local police who saw their guns – not by federal spies’ warnings.

When longtime NSA Director Gen. Keith Alexander was asked under oath how many plots the NSA has stopped in 10 years, he stated 53. The next day, he modified his testimony to three, but declined to elaborate. Edward Snowden, whose revelations about NSA spying have never been refuted, says that no plots have been stopped because the NSA looks at everyone, rather than targeting the bad guys, as the probable cause requirement – if complied with – would induce it to do.

Americans are largely free because of the rule of law. The rule of law means a supreme law of the land to which even the government is subject, just as are all persons. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government. In that world, who or what would restrain the government? An unrestrained government is what we fought the American Revolution against.

That’s why we must Restore the Fourth.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.

COPYRIGHT 2014 ANDREW P. NAPOLITANO – DISTRIBUTED BY CREATORS.COM

4th Amendment Civil Rights Current Events FBI Uncategorized

Not Your Grandfather’s FBI

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The Judge

The Judge

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Does the FBI manifest fidelity, bravery and integrity, or does it cut constitutional corners in order to incriminate? Can the FBI cut the cable television lines to your house and then show up pretending to be the cable guy and install listening devices? Can FBI agents and technicians testify falsely and cause the innocent to be convicted, incarcerated and, in some cases, executed?

In 2014, FBI agents in Las Vegas were on the trail of Wei Seng Phua, whom they believed was running an illegal gambling operation out of his hotel room at Caesars Palace. Instead of following him, asking questions about him and using other traditional investigative techniques, a few agents came up with the idea of planting a wiretap in Phua’s hotel room.

They bribed a hotel employee, who gave them access to a place in the hotel where they could disable the cable television wires to Phua’s room. When he called for repair, they showed up pretending to be cable guys, and he let them into his room. They repaired what they had disabled, but they also illegally wiretapped the phones in the room. Then they overheard his telephone conversations about his illegal gambling, and they arrested him. A grand jury indicted him based on what was overheard.

The grand jury was not told of the wire cutting and the con job, but a federal judge was. Last week, he criticized the FBI for conducting an illegal search of Phua’s room, in direct contravention of the Fourth Amendment, which the agents swore to uphold, and he barred the government from using the tapes of the telephone conversations as evidence against Phua. If the government can get away with this, he ruled, then constitutional guarantees are meaningless.

These lawless agents should have been indicted by a state grand jury for breaking and entering by false pretense, but Caesars declined to seek their prosecution. No surprise.

It was surprising, however, when the FBI was forced to admit last week that in the 1980s and 1990s, its agents and lab technicians who examined hair samples testified falsely in 257 of 268 cases that resulted in convictions. Of the convictions, 18 persons were sentenced to death, and of those, 12 have been executed.

Some of these cases were federal, but most were state prosecutions in which state and county prosecutors hired the FBI to perform lab tests and compare hair samples from a crime scene with a defendant’s known hair sample. The faulty lab work and erroneous testimony destroyed the freedom of hundreds and the lives of 12, squandered millions in tax dollars, and impaired the constitutional values we all embrace.

You probably did not hear about the FBI cable guys or the admitted 96-percent rate of false testimony in cases of conviction. That’s because the FBI skillfully diverted your attention.

In an effort to pick a front-page fight with the government of Poland, FBI Director James Comey revealed last week that the very concept of the Holocaust has moved him deeply – so deeply that he has ordered all new FBI agents to spend quiet time at the Holocaust Museum contemplating its horrors. He argued that the terror of Nazi agents became so commonplace that its wrongness was no longer apparent to them. That’s probably true. The Nazis did so much killing that their acts of killing innocents became commonplace to the killers. Then he blamed the Poles for their own victimization because of the few among them who collaborated with their invaders. This brought the hoped-for fierce blowback from the Polish government and top-of-the-fold criticism of Comey for two days.

Earlier this week, the FBI announced the arrest of eight persons for attempting to leave the United States in order to join ISIS. The actual charge is attempting to provide material assistance to a terrorist organization. These ISIS people are truly monsters. Yet, Americans have a natural right to travel where they want and associate with whomever they please. The test of a truly free country is the right to leave it.

Moreover, this was a controlled FBI sting. The defendants were instigated by and under the watchful eyes of FBI undercover agents. The FBI admits that the defendants never posed any harm. How can it be a crime – or harmful – for people to leave the U.S.? If people with evil inclinations want to leave, let them go; arrest them when they return if they cause harm.

For 600 years of Anglo-American jurisprudence, the definition of crime has included the element of harm. No one was harmed by this sting except the taxpayers. Yet, this announcement dominated the news cycle as hoped for.

Why chastise the Poles, who suffered egregiously under the Nazis, in 2015 for the few who collaborated with them in 1942? Why entrap losers who harmed no one into thinking they could freely leave the country and join an army of monsters and then announce their arrest during a bad week? To change the subject; that’s why.

Will FBI agents who lie, cheat, break the law and testify falsely be brought to justice? Will their superiors who condone this be made to answer? Does the FBI work for us, or do we work for it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has

COPYRIGHT 2014 ANDREW P. NAPOLITANO – DISTRIBUTED BY CREATORS.COM

4th Amendment Civil Rights Current Events DHS Surveillance Uncategorized

DHS Seeking to Buy Access to Cameras

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Drone

Drone

Despite the ongoing debate to roll back the Department of Homeland Security’s current civil liberties overreaches, the DHS is soliciting bids from corporations for access to license plate data collected by private surveillance systems. In a public statement, the Department said it’s “not seeking to build a national database or contribute data to an existing system,” rather, the DHS claims to be tapping into existing networks

According to the Washington Post, the DHS “is seeking bids from companies that already gather the data to say how much they would charge to grant access to law enforcement officers at Immigration and Customs Enforcement, a DHS agency.”

However, public statements vary greatly from the actual implementation of these policies; abuses are almost certain. More personal forms of data such as addresses, telephone numbers, and other information associated with registering a license plate could be “inadvertently” recorded and stored through private surveillance cameras.

Gregory T. Nojeim, senior counsel for the Center for Democracy & Technology said, “If this goes forward, DHS will have warrantless access to location information going back at least five years about virtually every adult driver in the U.S., and sometimes to their image as well,”

If they take it so far as to collect facial images, the DHS, and its partnered government agencies, will have the capability of establishing a biometric database. These databases could yield some of the most invasive law enforcement technologies the world has ever seen.

However, this new surveillance tool would only add to the DHS’ already incredible biometric law enforcement abilities. In fact, they have access to the FBI’s enormous multi-biometric database and are trying to extend biometric capabilities to US Border Patrol. According to NextGov, “The [border patrol] test is part of a coming overhaul of the department’s (DHS) biometric system, “IDENT,” which currently contains more than 170 million foreign fingerprints and facial images, as well as 600,000 iris templates.”

This license plate news is more like the cherry on top of the existing surveillance sundae.