The World According to Nick
Politics, News, Photography, and Triathlons... What don't I talk about?
Monday, October 10, 2011
The United States Really Does Have a Secret Death Panel

The United States government has a panel of people who can decide to kill you, but we don't know who those people are. There is a panel who can decide to kill you, but we don't know how they make that decision. You can't appeal their verdict. You can't defend yourself. You can't see the evidence against you. Sarah Palin warned of death panels because of Obama Care... but it is our War on Terrorism that has lead the United States government to decide that it can kill you whenever it wants.

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

Lord knows that al-Awlaki is not a sympathetic character. But he is an American citizen, and the evidence that he actually participated in terrorist attacks was far from solid:

The Obama administration has not made public an accounting of the classified evidence that Awlaki was operationally involved in planning terrorist attacks.

But officials acknowledged that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy.
There is no doubt Abdulmutallab was an admirer or follower of Awlaki, since he admitted that to U.S. investigators. . . . But at the time the White House was considering putting Awlaki on the U.S. target list, intelligence connecting Awlaki specifically to Abdulmutallab and his alleged bomb plot was partial. Officials said at the time the United States had voice intercepts involving a phone known to have been used by Awlaki and someone who they believed, but were not positive, was Abdulmutallab.

As Glenn Greenwald said so well:

What's crucial to keep in mind is that nobody can see this "evidence" which these anonymous government officials are claiming exists.  It's in their exclusive possession.  As a result, they're able to characterize it however they want, to present it in the best possible light to support their pro-assassination position, and to prevent any detection of its flaws.  As any lawyer will tell you, anyone can make a case for anything when they're in exclusive possession of all the relevant evidence and are the only side from whom one is hearing; all evidence becomes less compelling when it's subjected to adversarial scrutiny.  Yet even given all those highly favorable pro-government conditions here, it's obvious - even these officials admit - that the evidence is "partial," "patchy," based on "suspicions" rather than knowledge.

Frankly, I think the evidence is likely even less reliable and more patchy than is being let on. After all, with all the controversy that this has generated, if the government did have a slam dunk case against him, they would be waving it in the air. If you have nothing to fear, then you would alleviate all those concerns, and let everyone see your evidence. And remember that al-Awlaki was never convicted, nor even accused in court of single crime. As Ron Paul said:

"I don't think that's a good way to deal with our problems," Paul told reporters. "Al-Awlaki was born here; he is an American citizen. He was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the underwear bomber. But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys, I think it's sad.

"I think what would people have said about Timothy McVeigh? We didn't assassinate him, who we were pretty certain that he had done it. Went and put through the courts then executed him. To start assassinating American citizens without charges, we should think very seriously about this."

Yes, al-Awalki was not in the United States. But we have ways of handling that. He could have been tried in absentia. Hell, the least we could have tried to do was to put out an international arrest warrant against him, but it doesn't even seem that the United States government could even be bothered to carry out that tiny bit of formality against one of it's own citizens. al-Awalki was not even in an active combat zone. If he can be killed in a country we are not at war with, where else can they assassinate people without evidence?

Harold Koh, the State Department's legal adviser, says such attacks are justified by international law and by the Authorization for the Use of Military Force that Congress passed after the September 11 attacks. "The United States is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces," Koh says. "Individuals who are part of such an armed group are belligerents and, therefore, lawful targets."

But unlike a conventional war, this "armed conflict" is fought on a "battlefield" that spans the globe by "belligerents" who do not wear uniforms and are not readily identified. Hence Koh's reasonable-sounding law-of-war argument amounts to claiming that the executive branch has the unreviewable authority to kill enemies that it unilaterally identifies anywhere in the world.

The geographic reach of this license to kill exceeds even that of an old-fashioned tyrant accustomed to shouting, "Off with his head!" Imagine how the U.S. would react if a foreign government claimed it had the right to kill people on the streets of New York because it considered them "belligerents."

Not that it takes much work these days to go to war with a country. After all, Obama declared war on Libya without the consent of Congress, and shopped around for an opinion to justify it, why not do the same against Yemen, and just make that an active combat zone. See how easy it all is these days? Decide on the outcome first, and then figure out how to justify it later. We don't need laws, or the Constitution for any of this anymore. That is all far too inconvenient.

If you're Patrick Dorwin at Badger Blogger, the idea that a United States citizen should be tried in court, or maybe even given the least protection of the Constitution makes you "pro-terrorist". So you can't even question the methods. You can't question the policy of secret panels putting American citizens to death with secret evidence. This is the ultimate extreme of "you're either with us or you're against us", and it is a shameful thing to do. You may think he was somehow an enemy combatant, but to suggest that you're not even allowed to question the decision without being a terrorist lover is plain wrong.

Do I think that Americans, here in the United States could be put on a kill list and assassinated in our own borders? Lord, I hope not. But considering that you can now be put on a "Terrorist Watch List" and not know it... and that even if you are cleared in court of any wrongdoing, you may not necessarily be removed from it, I find it all more than troubling. These are the kinds of decisions that must be made in the complete light of day, because the consequences of them are the most extreme, and are the powers are the most easily abused.

We are going down a very bad road in this country, in many ways. Killing without conviction, and especially condemning those who even question the decision will only take us further down that horrible road. We must turn around while we still can.

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Monday, July 11, 2011
More Security Theater

Since Ally and I got back from our Honeymoon in Hawaii, I've been meaning to write about this particular incident on our trip. We flew out of Milwaukee, connected in Chicago, then to LAX and finally to Honolulu.  On our way out, we have no incidents, and even had a nice upgraded seat assignment from Chicago to LAX. In Milwaukee, we saw the new scanners were setup, but weren't being used and we just went through the old fashioned X-Ray machines.

During our return trip, we weren't so lucky. When we went through security in Honolulu, we went through the usual stupid process. Empty all your pockets of anything metal into a bin, take off your shoes and place those in a bin, etc. Unfortunately in Honolulu, they were using the new enhanced "naked scanners". This was actually the first time I had the displeasure of using one. I emptied my pockets, stepped into the machine, "assumed the position" and got scanned.

As I walked out, the TSA officer didn't let me get my things, and then said "did you empty your pockets?". To which I responded, yes. "Are you sure you emptied all your pockets?" I looked at him and said, "Yes, I put everthing in the basket except maybe a couple of receipts". The officer looked at me and shook his head. "You need to empty your pockets of everything!" I stared at him in a dumbfounded way. "Even two slips of paper?" He looked at me again. "Everything."

So I reached into my other pocket where I had stuck the receipts from the car rental and put them in his basket. The TSA official then asked me to extend my leg, and he patted down the part of my leg that had been obscured by the two receipts. I was then able to continue and get my things again. And that is when I leaned that a multimillion dollar scanner was foiled by two small scraps of paper, which didn't even have a staple in them.

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Monday, May 09, 2011
Putting Amateurs In Charge of Security

Last week, partially in response to the death of Osama Bin Laden, Milwaukee Police Chief Ed Flynn asked that everyone become hyper vigilant, and if you "See Something, Say Something". While on the surface, the Chief's advice makes sense, it is actually the wrong approach, and will make us worse off in the long run. Security expert Bruce Schneier has written extensively on this type of thinking, and this entire article is well worth a read, but I'll clip out some of the better parts as they pertain to what the Milwaukee Police Chief is asking of us:

The problem is that ordinary citizens don't know what a real terrorist threat looks like. They can't tell the difference between a bomb and a tape dispenser, electronic name badge, CD player, bat detector or trash sculpture. Nor can they tell the difference between terrorist plotters and imams, musicians or architects. All they know is that something makes them uneasy -- usually based on fear, media hype or just something being different.

Even worse: After someone reports a "terrorist threat," the whole system is biased towards escalation and CYA instead of a more-realistic threat assessment.

Watch how it happens. Someone sees something, so he says something. The person he says it to -- a policeman, a security guard, a flight attendant -- now faces a choice: ignore or escalate. Even though he may believe that it's a false alarm, it's not in his best interests to dismiss the threat. If he's wrong, it'll cost him his career. But if he escalates, he'll be praised for "doing his job" and the cost will be borne by others. So he escalates. And the person he escalates to also escalates, in a series of CYA decisions. And before we're done, innocent people have been arrested, airports have been evacuated, and hundreds of police hours have been wasted.

We're already seeing this in statistics from New York, where after Bin Laden was killed, there was a spike in reporting of "suspicious" packages:

There were 10,566 reports of suspicious objects across the five boroughs in 2010. So far this year, the total was 2,775 as of Tuesday compared with 2,477 through the same period last year.
The daily totals typically spike when terrorist plot makes headlines here or overseas, NYPD spokesman Paul Browne said Tuesday. The false alarms themselves sometimes get break-in cable news coverage or feed chatter online, fueling further fright.

On Monday, with news of the dramatic military raid of bin Laden's Pakistani lair at full throttle, there were 62 reports of suspicious packages. The previous Monday, the 24-hour total was 18. All were deemed non-threats.

Why the spike? There was no increased terrorist activity in New York. What increased was people's fear. And so things that they normally would not have thought twice about (and rightfully so) became suspicious in their minds. And because most citizens aren't security experts, they had no way of truly telling the difference.

This does not help the police, as Ed Flynn suggests. Instead, it floods the police with more bad information they have to sift through. It increased the amount of chaff that has to be cleared before the wheat is found. Moreover, when you have that much extra noise, it makes it more likely that valid information will be missed. As Schneir concludes:

If you ask amateurs to act as front-line security personnel, you shouldn't be surprised when you get amateur security.
People have always come forward to tell the police when they see something genuinely suspicious, and should continue to do so. But encouraging people to raise an alarm every time they're spooked only squanders our security resources and makes no one safer.

Bin Laden was found through good data analysis over a long period of time. But that data did not come through the average man on the street in Milwaukee saying something. Asking amateurs to flood data centers with bad information will not help us.

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Sunday, February 20, 2011
Is Sensenbrenner in Denial, Lying or Simply Ignorant of the Patriot Act?

On Friday, I got the following newsletter emailed to me from Jim Sensenbrenner about the Patriot Act Extension:

On the President’s desk waiting for his signature is my bill extending the PATRIOT Act for 90 days.  Both the House and Senate passed this bill in the last week.  While I’m glad these provisions were extended, as they keep important intelligence-gathering provisions in place, I wish the Senate would have passed the original House bill, as that bill extended the Act until December 8.

Repeatedly extending these provisions for the short-term creates needless uncertainty for our intelligence agencies.

Extension after extension, year after year, challenge after challenge, these three provisions continue to pass the smell test.  These provisions help law enforcement in three ways: they grant authority for court approved roving wiretaps on terror suspects as they change phones or locations; they allow the court approved examination of a terror suspects business records; and finally, the "lone wolf provision" allows the surveillance of suspicious foreigners (not Americans).

Since the PATRIOT Act was enacted, these provisions have been scrutinized to the fullest extent of the law and have always been found constitutional.  Additionally, no civil liberties have ever been violated.  These three provisions have stopped countless potential attacks and play a critical role in helping ensure law enforcement officials have the tools they need to keep our country safe and stop terrorist groups before they attack.

This has been a pretty consistent theme by Sensenbrenner. Every time the Patriot Act is up for renewal, Sensenbrenner always claims that civil liberties are never violated, and that it's never been found unconstitutional. However, both of these claims are outright false, which leads me to wonder why he continues to make them.

What is most interesting is that there is decent in his own party regarding the Patriot Act. Sensenbrenner actually sponsored a bill which would "fast track" the extension through the House, and would have required a 2/3 majority to pass. As it turns out, many members of his own party, mostly Tea Party Republicans, voted against this fast tracking, and it failed. It wasn't until several days later, with the much shorter extension that only required  a simple majority, that it finally passed. Rand Paul spoke very well against the Patriot Act in the Senate:

When the bill did come up for re-authorization, Democrats offered their own amendments, one of which stated:

No Constitutional shortcuts. When investigating American citizens, the government must comply with the Constitution, even in national security investigations

Challenging unconstitutional action. If a citizen challenges the government's use of PATRIOT Act power in a court of law, the case must be expedited to ensure the individual's rights are upheld.

While many would say this was simply a stunt (like reading the Constitution in the House chambers, or requiring that bills say which part of the Constitution authorizes it)... it does beg the question... if the Patriot Act is so wonderfully Constitutional, then what would be so controversial of adding these a provisions to the bill? But I digress...

What of Sensenbrenner's claim that the act is in fact Constitutional and has passed judicial review time and time again? Once again, this is false. One of the more controversial aspects of the Patriot Act was the portion which expanded the ability of the FBI to create National Security Letters... which is essentially a warrantless search where they cross their heart and hope to die that they have good reason to do it. Many portions of this have been ruled either ruled unconstitutional or have had injunctions filed against it and are in serious trouble. In Doe v. Holder, the potions of the statute that required insane gag orders on NSL recipients was ruled unconstitutional. A similar gag order on Libraries regarding NSL's was also ruled unconstitutional in Library Connection v. Gonzales. Similar gag orders with regard to NSL's have been ruled unconstitutional against Internet Service Providers.

But gag orders on National Security Letters is only the tip of the ice berg. Sensenbrenner's claim that civil liberties were never violated is likewise false. The Inspector General's Office has audited the FBI's use of various Patriot Act provisions and found widespread abuse:

The Justice Department Inspector General's internal audit, released Wednesday, harshly criticized how the Federal Bureau of Investigation's Communications Analysis Unit - a counterterrorism section founded after 9/11 — relied on so-called "exigent" letters to get carriers to turn over phone records immediately. The letters were a hangover from the investigation into the 9/11 attacks in New York and promised telecoms, falsely, that subpoenas would follow shortly.
"We found that a distinct lack of oversight and scrutiny by CAU managers, counterterrorism officials and FBI Office of General Counsel attorneys enabled the improper practice of obtaining ECPA-protected telephone records with the promise of future legal process to expand and proceed virtually unchecked for over 4 years," the report found.

The reality is that contrary to Sensenbrenner's final claim that "countless attacks" have been stopped by these provisions, most of the NSL's are actually used in non-terrorism related cases. And we have no knowledge how many plots have been foiled, if any, by these provisions.

Finally, these provisions do not pass the smell test. They have simply provided the FBI with shortcuts on basic 4th Amendment protections that we should all enjoy. Moreover, they were created in such away that many people may never know if their rights were in fact violated.

The Patriot Act has never protected civil liberties, and is certainly not Constitutional, and don't let Jim Sensenbrenner tell you otherwise.

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Monday, January 31, 2011
The US Government Never Abuses It's Special Powers - Right?

I suppose some of you who read my last post on the Internet Kill Switch thought that my comparing what Egypt did to what the United States wants to do was out of order. After all, the United States government is much different than the Egyptian government. Would the United States government really cut off all access to the Internet? Perhaps that is a far fetched (but not completely out of the realm of possibility). However, would it use this newfound power to disconnect certain websites or services that it deemed a threat, even if there were no immediate threat? Clearly that would be an abuse of power... but would that stop the government?

Perhaps as an example of what the government is willing to do with it's "special powers", we should examine this recent report from the Electronic Frontier Foundation on the FBI's use of National Security Letters (warrantless searches):

In a review of nearly 2,500 pages of documents released by the Federal Bureau of Investigation as a result of litigation under the Freedom of Information Act, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices. The documents consist of reports made by the FBI to the Intelligence Oversight Board of violations committed during intelligence investigations from 2001 to 2008. The documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed.

In particular, they show various breaches where the FBI improperly used National Security Letters in investigations where it's not allowed, obtained private information from thousands of people, improperly used that information in court, and withheld information from oversight boards. Remember, these National Security Letters were going to be very tightly controlled (according to those who supported them), and only used in terrorism cases. This report shows that this is false, on all accounts.

The 4th Amendment exists for a reason. There is a reason why the police have to show probable cause to a judge before getting a warrant. This has to stop.

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Perhaps Giving the Government an Internet Kill Switch Isn't a Good Idea

As I'm sure you've heard by now, there is a lot of unrest in Egypt right now, including some major demonstrations and protests against the current Egyption government. In an effort to quell the protestors and assert their control, the Egyptian Government has effectively shut down the Internet in that country. Here is a nice visual demonstration of that from the Arbor Networks (via Reason):

We should remember this as Congress begins to reconsider the Protecting Cyberspace as a National Asset Act of 2010, otherwise known as the "Internet Kill Switch Bill". The authors promise (as they always do), that it won't be abused. And yet the language in the bill is generally very vague, and leaves much of the interpretation of the act to a yet to be created office in the executive branch. And while the bill mentions that many private companies will be able to "volutarily" submit to certain parts of the act, it's clear that voluntary action by ISP's are rarely voluntary. Anyone who remembers their submission to warrantless searches during the Bush Administration will tell you that.

The authors suggest that it's necessary to "require infrastructure connected to 'the system that controls the floodgates to the Hoover dam' to cut its connection to the net if the government detected an imminent cyber attack", but what they don't say is how the government would know when such an attack were imminent, and more importantly, why a network wouldn't voluntarily disconnect if it were made aware of said attack.

The fact is, there is no need to create a mechanism to force any company or network to do what they are asking, because any company would volutarily disconnect in any of the scenarios where they say such force would be used. So the only reason to create a mechanism to forcefully disconnect a network is when nobody would do so voluntarily... and that is a scary thought.

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Thursday, December 02, 2010
Do We Have a Right to Free Movement?

For those who have been following me on Twitter, you know that I think the Transportation Security Administration is a complete waste. They are ineffective agency, who is abusing their power, and not only violating our dignity, but our Constitutional Rights. In fact, I am so upset by what they do, and how they do it, that I can't say I even respect anyone who works for the agency. If you choose to work there knowing what they do to people, then you deserve all the derision that travelers dump on you daily. There are actually people who suggest that we "thank" members of the TSA for groping us and taking pictures of our naked bodies. I suppose they also "thank" employees of the IRS for auditing them too.

There has been a lot of commentary regarding the TSA and their ineffective and unwarranted searches of people in a lot of places. Certainly Bruce Schneier and his roundup is well worth a read, not only for commentary, but also great explanations of why everything the TSA is completely worthless. More importantly is this great analysis of why the current search regime is unconstitutional. Many of those who argue for the TSA claim that "flying is a privilege", and therefore, if you don't like the searches, you just shouldn't fly. The problem with this theory is that the government is ensuring that no matter how you choose to travel, you must either be licensed, or you must submit to a search.

One could argue that if you don't want to be searched, then you can take a bus or a train. But as this video demonstrates, the TSA is now beginning to do searches at intermodal stations that serve intra-city buses and trains (video via The Agitator):

One important thing to note about this report is that they are doing more than simply searching for explosives, or other devices that could cause harm to people on the bus or the train. They said they were searching for people carrying unusual amounts of cash, or other contraband as well as checking identification to ensure you are legally in this country (papers please). In other words, they are using the fear of terrorism to get around the basic 4th Amendment protections against illegal search and seizure. They don't want to bother with probable cause, and instead just want to search everyone and see who is breaking the law. This is precisely what the 4th Amendment was designed to prevent.

I'm sure there are then people who would argue that traveling on a bus or train is a privilege, and not a right, and that you should simply drive. The problem with this is that in order to drive, you must be licensed by the government to do so. Even if you are licensed by the government to travel, you might still be searched by the TSA according to this news report:

Local law enforcement and federal agents conducted a checkpoint operation Tuesday afternoon in Douglas County, the Federal Air Marshal Service told the AJC.

"This is a live operation intent on deterring would-be terrorists or criminal activity," Nelson Minerly, spokesman for the federal agency, told the AJC.

The operation created a big distraction to motorists heading eastbound on I-20 in rush hour, and many motorists let the AJC and the WSB traffic center hear about it.

But the operation, which also involves the Transportation Security Administration, is top-secret before it happens, Minerly said.

"We don’t advertise when they're going to happen or when they're going to be," Minerly said.

Mostly trucks were being checked, Minerly said. Shortly before 6 p.m., nothing had been recovered in the operation, he said.

"There's no specific threat," Jon Allen, regional spokesman for the TSA, told the AJC.

It's a little unclear whether any passenger vehicles were also checked, but note that they were looking for terrorists or criminal activity. This is certainly a violation of the 4th Amendment, and as The Agitator points out, has already been ruled unconstitutional under Indianapolis v. Edmond, not that this stops the federal government. This is no longer about protecting us from terrorism. This is about a naked power grab, and how the government wants to simply search everyone, at any time, for any reason.

The question that I pose in the title of this post, "Do we have a right to free movement?", is an important one. If we believe that free movement is a constitutionally protected right, then the government cannot demand that we give up other constitutional rights in order to exercise it. For instance, you cannot be forced to give up your right to free speech in order to exercise your right to vote. All rights sit on equal footing, and you don't have to be forced to choose among them. Moreover, the government cannot place an undue burden on citizens who try to exercise that right. By forcing citizens to submit to searches no matter what mode of travel they choose, the government is essentially forcing those who wish to be free of unreasonable search and seizure to hike long distances by foot.

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Thursday, May 13, 2010
There's No Avoiding the Horrors of this SWAT Raid

I've blogged about how unnecessarily violent and confrontation SWAT tactics are, and how they are overused considerably in our nation many times. But the reality is, especially among ardent drug warriors, that SWAT is not only necessary, but somehow can't be nearly as bad as people think. The problem is due partially from the tacit compliance by local news media to not cover the brutality of these raids, or the consequences of them. Most local news media has to keep cozy with the police, otherwise they wouldn't get half their news stories. The other problem is that its hard for people to really imagine what goes on during one of these raids. Not anymore.

Below is a YouTube video of an actual SWAT raid in Missouri. Here is the original story that followed the raid. There are some interesting things to note about this raid. First of all, the police only found enough pot to charge the man with a misdemeanor. The second thing is that both the victim's dogs were shot, and one died. This is actually quite common. From the number of stories I have read, I believe it is standard operating procedure for SWAT teams to shoot any dogs they encounter on sight. One of the dogs shot in this case was a Corgi (not exactly an aggressive dog).

The more brazen thing being done by prosecutors here is to charge one of the men arrested with "child endangerment" because he had marijuana in the house. Just to be clear, the police think that having a small amount of marijuana around a 7 year old is child endangerment, but that breaking into a home with automatic weapons, and shooting two dogs right in front of that child is not child endangerment. That simply boggles the mind.

Watch the video, and understand the horror that takes place in our nation more than 100 times daily. Is this the sort of thing we should be doing in the United States?

Via The Agitator.

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Wednesday, August 26, 2009
How Easy Is It To Manipulate a Breathalyzer?

This is a pretty scary video if it is accurate:

It shows how easy it is for a police officer to manipulate the results of a breathalyzer, simply by putting his thumb over the output port on the device.  In fact, the results were dramatic... it double the reading!  That means that someone with a .04 with a normal device would register as legally drunk if the device is tampered with.

What is even more scary about this method, is that it does not permanently alter the calibration on the machine, so another blow (if not tampered with) would be accurate again, making it impossible for the accused to prove what happened.

Via Schneier on Security.

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Thursday, June 25, 2009
Strip Search Ruled Illegal

In a blazing, and somewhat surprising, common sense ruling, the Supreme Court has ruled that a school's strip search of a middle school girl for ibuprofen 6 years ago was in fact illegal:

The Supreme Court ruled by an 8-1 vote Thursday that the strip search of a middle-school girl for prescription-strength ibuprofen violated her privacy rights.

The decision in an Arizona case requires administrators nationwide to weigh more carefully how intrusively they search for drugs.
A school official must have, Souter wrote, a "reasonable suspicion of danger" regarding the contraband sought and a belief that it could be in the student's underwear before making "the quantum leap from outer clothes and backpacks to exposure of intimate parts."

In October 2003, after obtaining an unverified tip from another student that eighth grader Savana Redding might have ibuprofen and finding none in her backpack, Safford Middle School assistant principal Kerry Wilson asked a school nurse and administration assistant to search Savana in the nurse's office. The two women had Savana take off her shoes and socks, then her shirt and pants. They then directed her to pull out her bra and pull open her panties to see if she was hiding any pills. None were found.
Justice Clarence Thomas was the lone dissenter. He said the majority opinion "grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge."

I blogged about this case a couple years ago.  Clarence Thomas should be absolutely ashamed of himself.  The idea that requiring school administrators to use some basic common sense before humiliating and violating a young girl is too much... well... he has as little common sense in this area as they when the search was performed.  It's important to note, that had the search not been performed at all, the health and safety of students would not have been compromised.  Ibuprofen is a perfectly legal and safe, over the counter drug.

Although I think Thomas should be ashamed, I am not surprised by his ruling.  He very consistently sides with government agencies that act in a law enforcement capacity.  Because the courts rarely throw out charges when searches are performed illegally, the police do not have an incentive to follow the law.  This is a rare instance when our basic freedoms have been protected by the court.  Unfortunately, in a seperate vote, the court also ruled that the administrators could not be held liable.  So one wonders how much protection this ruling will really give.

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Wednesday, June 17, 2009
Innocent People Do Get Convicted of Murder

And a hell of a lot more often than people want to admit.  In fact, John McAdams seems to think that we need to be killing more murderers in jail... because "apparently" we have yet to kill an innocent man.  Now then, are there guilty people on death row?  Absolutely.  But there are also people who have been convicted of murder who are innocent.  Take for instance, this gentleman:

At age 17, I was wrongfully convicted of murder and rape, despite a negative DNA test and hair found on the body that did not match mine. My conviction was based upon a coerced, false confession, the fabrication of other evidence, prosecutorial misconduct and fraud by the medical examiner. I was cleared 16 years later - almost three years ago - when further DNA testing reaffirmed my innocence while identifying the real perpetrator, who subsequently confessed and was sentenced.

The story goes on to describe how the appeals system worked against him at every turn, despite the strong evidence of his innocence.  This case is even more interesting because one of the appeals judges was Sonia Sotomayor, who was willing to let this innocent man stay in jail because he missed an appeals deadline by four days, only because the clerk of a court gave his attorney the wrong deadline.  So much for empathy.

The fact is, once you are found guilty, nobody wants to look at your case any more, and very few people want to reconsider the decision of the jury.  The fact is, we haven't found an innocent person on death row yet because, very few people bother to look.  The sad fact is, most people would rather bury their heads in the sand about the injustices that happen in our justice system, because we don't want to think about innocent people who may be wrongfully imprisoned.

Sometimes the evidence against these people is so flimsy that it's shocking.  Take for instance this story out of Florida, where testimony from a "wonder dog" put at least 3, and possibly as many sixty men, in jail wrongfully.  The dog handler was able to convince juries that his dog was able to track a suspect to the scene of the crime montys after the crime.  This is something that is so crazy, I am shocked that a jury would have bought it.

A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.

Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.

If it sounds hard to believe, there's a good reason.

After providing prosecutors with testimony for years, Preston was finally discredited by a judge who had the sense to do what others had not: test the dog for himself.

But not until after Preston and his dog had appeared in dozens of cases.

We know that at least three of those cases were overturned - after the defendants collectively spent more than a half-century in prison.

What is even scarier is that the Attorney General for the state has no real interest in going back and seeing if any other guilty people were put in jail because of this crack pot dog handler.  And we wonder why we haven't found any innocent people on death row yet?  Once again, the people who are in the best position to check, because they have the most information about the case, are not interested in checking.

For my part, I have no problem with the death penalty in theory.  I think the idea of killing someone as punishment for killing is perfectly acceptable.  However, the problem is that because of the finality of that punishment, "beyond a reasonable doubt" is no long sufficient for that punishment.  You have to be absolutely, 100% sure, otherwise the risk is too great.  And since it is nearly impossible to practically create a law where you would only send 100% guilty murderers to death, its simply safer to not do it at all.

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Monday, February 02, 2009
A Heartbreaking Story

Here is a detailed story about the wrong door SWAT raid on the mayor of a town, where his two dogs were killed.  It has a lot of details, and it absolutely heart breaking.  The saddest part, is that none of it had to happen.  Their lives were torn upside down, and two beloved dogs were killed by the police for no good reason.  To say that the police involved were irresponsible and lazy would be putting it mildly.  But we have to win the War on DrugsTM at all costs I guess... even if we destroy the very thing we're trying to protect while we do it.

To date, the arrogance of the police involved is incredible.  They have acknowledged the mayor did absolutely nothing wrong, but refuse to acknowledge that the tactics employed were not appropriate, or that they did anything wrong in the investigation.  Serving and protecting indeed.

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Tuesday, December 16, 2008
Yet Another Patriot Act Provision Ruled Unconstitutional

Another small victory for liberty, as another provision of the Patriot Act, which Congressman Jim Sensenbrenner claims doesn't violate any civil liberties, was ruled to viotate civil liberties:

A federal appeals court today upheld, in part, a decision striking down provisions of the Patriot Act that prevent national security letter (NSL) recipients from speaking out about the secret records demands. The decision comes in an American Civil Liberties Union and New York Civil Liberties Union lawsuit challenging the FBI's authority to use NSLs to demand sensitive and private customer records from Internet Service Providers and then forbid them from discussing the requests. Siding with the ACLU, the U.S. Court of Appeals for the Second Circuit found that the statute's gag provisions violate the First Amendment.
The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders – provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch.

Of course, as I've argued before, the very idea of a "National Security Letter" itself spits in the face of the 4th Amendment, as they do not require propobable cause in order to get.  But at least if you receive one, you are allowed to talk about it.  Not only that, but now a bank, or an ISP, is allowed to disclose to its customers that your personal data was given to the government.  I guess that's something.  Now you can know that your personal banking information might be on a laptop that the government seems to be constantly losing, unencrypted, at airports.

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Monday, December 08, 2008
How Do You Define "The Battlefield"?

On Friday, the Supreme Court agreed to hear an extremely important case that will decide many important aspects regarding the extent to which Executive Authority can extend:

The Supreme Court agreed on Friday to decide the most fundamental question yet concerning executive power in the age of terrorism: May the president order the indefinite military detention of people living legally in the United States?

The case concerns Ali al-Marri, the only person on the American mainland being held as an enemy combatant, who is in custody at the Navy brig in Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the United States when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri, who has been held in isolation for more than five years without being charged, is a Qaeda “sleeper agent” sent to the United States to commit mass murder and disrupt the banking system.

The central question in the case is whether Mr. Marri should be treated as an enemy soldier who may be held until hostilities end or as a criminal like Timothy J. McVeigh, who was convicted in a civilian court of blowing up the Oklahoma City federal building.

His is not exactly an isolated case, but it certainly is the most clear cut for over reach.  He was in the United States legally, and though he likely committed a crime, he should still be protected by the Constitution.  That means allowing for habeas corpus, as well as a presumption of innocence and trial by jury.  The basic premise behind a trial by jury and presumption of innocence is that we assume that the government is wrong, and has to prove it's case, because the government has the power to detain.  There is already a huge imbalance of power between the government and citizens.  These protections are all we have.  We should protect them very carefully.

After all, if we starting saying that the Constitution doesn't apply to legal residents when they are accused of terrorism, how long before terrorism becomes a rationale to suspend the Constitution for citizens?

Maryland officials now concede that, based on information gathered by "Lucy" and others, state police wrongly listed at least 53 Americans as terrorists in a criminal intelligence database -- and shared some information about them with half a dozen state and federal agencies, including the National Security Agency.

Among those labeled as terrorists: two Catholic nuns, a former Democratic congressional candidate, a lifelong pacifist and a registered lobbyist. One suspect's file warned that she was "involved in puppet making and allows anarchists to utilize her property for meetings."

And that was just surveillance.  Of course, then they got listed as "terrorists" in state and national databases.  Many of these people work with members of Congress and lobbying groups.  So it would seem that they wanted to list peopel who disagree with current policy as terrorists.  I'm more than likely on a list myself if that's the definition.

The Bush Administration, it would seem, not only wants to hold these people for the duration of The War on TerrorTM, which is more of a slogan that a defined war, but now it also wants to define the battlefield as everywhere in the world.  That is a formula for abuse, and one which I hope the Obama Administration will not continue.  I didn't trust the Bush Administration with that power, and I don't trust an Obama Administration with that power either.

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Friday, December 05, 2008
Happy Repeal Day!

75 years ago today, the 21st Amendment to the Constitution was ratified, which repealed the 18th Amendment... rolling back the terrible practice of prohibition.  In recognition of this, many members of Congress are celebrating repeal day and created this Resolution patting themselves on the back.  It reads in part:

Whereas prior to the 18th Amendment to the Constitution, which established Prohibition in the United States, abuses and insufficient regulation resulted in irresponsible overconsumption of alcohol;

Whereas passage of the 18th Amendment, which prohibited 'the manufacture, sale, or transportation of intoxicating liquors' in the United States, resulted in a dramatic increase in illegal activity, including unsafe black market alcohol production, organized crime, and noncompliance with alcohol laws;

Whereas everything mentioned above also applies to our foolish War on DrugsTMEverything that is said about alcohol prohibition applies to the Drug War.  It is dangerous folly, which has cost us trillions of dollars, destroyed many of our rights, makes innocent people subject to brutal police tactics, made drugs more dangerous and created black markets, and has done absolutely nothing to curb their use.

Yet the same people who are celebrating the 21st Amendment with a drink would never consider doing anything to stop the War on DrugsTM.  So please, do have a drink tonight, and then think about the costs incurred when we attempt to prohibit something which is at it's core, is a personal vice.

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