The Government's New Right to Track Your Every Move With GPS
By: Adam Cohen
Time
Thu Aug 26, 3:45 am ET
Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway - and no reasonable expectation that the government isn't tracking your movements.
That is the bizarre - and scary - rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants - with no need for a search warrant.
It is a dangerous decision - one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.
This case began in 2007, when Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.
After Pineda-Moreno challenged the DEA's actions, a three-judge panel of the Ninth Circuit ruled in January that it was all perfectly legal. More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, decided this month to let it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.)
In fact, the government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a fancy legal term for the area around the home. The government's intrusion on property just a few feet away was clearly in this zone of privacy.
The judges veered into offensiveness when they explained why Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.
Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist," he wrote. "No truly poor people are appointed as federal judges, or as state judges for that matter." The judges in the majority, he charged, were guilty of "cultural elitism."
The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state - with technology taking on the role of the KGB or the East German Stasi.
Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's - including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court ruled, also this month, that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.
In these highly partisan times, GPS monitoring is a subject that has both conservatives and liberals worried. The U.S. Court of Appeals for the D.C. Circuit's pro-privacy ruling was unanimous - decided by judges appointed by Presidents Ronald Reagan, George W. Bush and Bill Clinton.
Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. "1984 may have come a bit later than predicted, but it's here at last," he lamented in his dissent. And invoking Orwell's totalitarian dystopia where privacy is essentially nonexistent, he warned: "Some day, soon, we may wake up and find we're living in Oceania."
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.
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Confirmed: Obama Authorizes Assassination of U.S. Citizen
By Glenn Greenwald
Salon.com original HERE...
Wednesday, Apr 7, 2010 07:08 ET
In late January, I wrote about the Obama administration's "presidential assassination program," whereby American citizens are targeted for killings far away from any battlefield, based exclusively on unchecked accusations by the Executive Branch that they're involved in Terrorism. At the time, The Washington Post's Dana Priest had noted deep in a long article that Obama had continued Bush's policy (which Bush never actually implemented) of having the Joint Chiefs of Staff compile "hit lists" of Americans, and Priest suggested that the American-born Islamic cleric Anwar al-Awlaki was on that list. The following week, Obama's Director of National Intelligence, Adm. Dennis Blair, acknowledged in Congressional testimony that the administration reserves the "right" to carry out such assassinations.
Today, both The New York Times and The Washington Post confirm that the Obama White House has now expressly authorized the CIA to kill al-Alwaki no matter where he is found, no matter his distance from a battlefield. I wrote at length about the extreme dangers and lawlessness of allowing the Executive Branch the power to murder U.S. citizens far away from a battlefield (i.e., while they're sleeping, at home, with their children, etc.) and with no due process of any kind. I won't repeat those arguments, but I do want to highlight how unbelievably Orwellian and tyrannical this is in light of these new articles today.
Just consider how the NYT reports on Obama's assassination order and how it is justified:
The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday. . . .
American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.
It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president. . . .
"The danger Awlaki poses to this country is no longer confined to words," said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. "He’s gotten involved in plots."
No due process is accorded. No charges or trials are necessary. No evidence is offered, nor any opportunity for him to deny these accusations (which he has done vehemently through his family). None of that.
Instead, in Barack Obama's America, the way guilt is determined for American citizens -- and a death penalty imposed -- is that the President, like the King he thinks he is, secretly decrees someone's guilt as a Terrorist. He then dispatches his aides to run to America's newspapers -- cowardly hiding behind the shield of anonymity which they're granted -- to proclaim that the Guilty One shall be killed on sight because the Leader has decreed him to be a Terrorist. It is simply asserted that Awlaki has converted from a cleric who expresses anti-American views and advocates attacks on American military targets (advocacy which happens to be Constitutionally protected) to Actual Terrorist "involved in plots." These newspapers then print this Executive Verdict with no questioning, no opposition, no investigation, no refutation as to its truth. And the punishment is thus decreed: this American citizen will now be murdered by the CIA because Barack Obama has ordered that it be done. What kind of person could possibly justify this or think that this is a legitimate government power?
Just to get a sense for how extreme this behavior is, consider -- as the NYT reported -- that not even George Bush targeted American citizens for this type of extra-judicial killing (though a 2002 drone attack in Yemen did result in the death of an American citizen). Even more strikingly, Antonin Scalia, in the 2004 case of Hamdi v. Rumsfeld, wrote an Opinion (joined by Justice Stevens) arguing that it was unconstitutional for the U.S. Government merely to imprison (let alone kill) American citizens as "enemy combatants"; instead, they argued, the Constitution required that Americans be charged with crimes (such as treason) and be given a trial before being punished. The full Hamdi Court held that at least some due process was required before Americans could be imprisoned as "enemy combatants." Yet now, Barack Obama is claiming the right not merely to imprison, but to assassinate far from any battlefield, American citizens with no due process of any kind. Even GOP Congressman Pete Hoekstra, when questioning Adm. Blair, recognized the severe dangers raised by this asserted power.
And what about all the progressives who screamed for years about the Bush administration's tyrannical treatment of Jose Padilla? Bush merely imprisoned Padilla for years without a trial. If that's a vicious, tyrannical assault on the Constitution -- and it was -- what should they be saying about the Nobel Peace Prize winner's assassination of American citizens without any due process?
All of this underscores the principal point made in this excellent new article by Eli Lake, who compellingly and comprehensively documents what readers here well know: that while Obama's "speeches and some of his administration’s policy rollouts have emphasized a break from the Bush era," the reality is that the administration has retained and, in some cases, built upon the core Bush/Cheney approach to civil liberties and Terrorism. As Al Gore asked in his superb 2006 speech protesting Bush's "War on the Constitution":
Can it be true that any president really has such powers under our Constitution?
If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can't he do?
Notice the power that was missing from Gore's indictment of Bush radicalism: the power to kill American citizens. Add that to the litany -- as Obama has now done -- and consider how much more compelling Gore's accusatory questions become.
UPDATE: When Obama was seeking the Democratic nomination, the Constitutional Law Scholar answered a questionnaire about executive power distributed by The Boston Globe's Charlie Savage, and this was one of his answers:
5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?
[Obama]: No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.
So back then, Obama said the President lacks the power merely to detain U.S. citizens without charges. Now, as President, he claims the power to assassinate them without charges. Could even his hardest-core loyalists try to reconcile that with a straight face? As Spencer Ackerman documents today, not even John Yoo claimed that the President possessed the power Obama is claiming here.
UPDATE II: If you're going to go into the comment section -- or anywhere else -- and argue that this is all justified because Awlaki is an Evil, Violent, Murdering Terrorist Trying to Kill Americans, you should say how you know that. Generally, guilt is determined by having a trial where the evidence is presented and the accused has an opportunity to defend himself -- not by putting blind authoritarian faith in the unchecked accusations of government leaders, even if it happens to be Barack Obama. That's especially true given how many times accusations of Terrorism by the U.S. Government have proven to be false.
UPDATE III: Congratulations, Barack Obama: you're now to the Right of National Review on issues of executive power and due process, as Kevin Williamson objects: "Surely there has to be some operational constraint on the executive when it comes to the killing of U.S. citizens. . . . Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent. " But Andy McCarthy -- who is about the most crazed Far Right extremist on such matters as it gets, literally -- is as pleased as can be with what Obama is doing (or, as Gawker puts it, "Obama Does Something Bloodthirsty Enough to Please the Psychos").
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How Empires Rule at Home
By: Professor Francis A. Boyle, The Criminality of Nuclear Deterrence - Could The US War On Terrorism Go Nuclear? (Clarity Press, 2002),
original HERE...
Undoubtedly, the further expansion of the American Empire and Pax Americana abroad will require the further imposition of an American police state here at home. As the Romans discovered, an Empire is incompatible with a Republic. No point would be served here by reviewing the extensive literature that was generated during the Vietnam War comparing the United States with the demise of the Imperial Athenian Democracy during what Thucydides first denominated as the “Peloponnesian War” that really extended over 27 years. Yet the Bush Jr. administration is publicly and shamelessly promising us a war against terrorism without a conceivable end in sight. Not even the proverbial light at the end of the tunnel.
Bush Jr.'s Constitutional Coup D'Êtat
From the Supreme Court's installation of Bush Jr. as President to the Ashcroft/Federalist Society post-September 11th regime of police state “laws,” the politico-legal functioning of America is increasingly resembling that of a Banana Republic. Since September 11th, we have seen one blow against the U.S. Constitution after another. For example, Attorney General John Ashcroft unilaterally instituted the monitoring of attorney-client communications despite the Fourth Amendment ban on unreasonable searches and seizures and the Sixth Amendment right to representation by Counsel in criminal cases. He just went ahead and did it, without even bothering to inform anyone.
Over 1100 aliens have been picked up and “disappeared” by Ashcroft and his Department of Injustice. The American People have no idea where most of these people are. They are being held on the basis of immigration law, not criminal law, for a period of detention which has not been defined. Ashcroft proclaimed another ukaze that these immigration proceedings must be held in secret. The phenomenon of “enforced disappearances” is considered to be a crime against humanity by Article 7(I)(i) of the Rome Statute for the International Criminal Court.
It appears that many of these aliens have been deprived of their basic human rights to consular notification and access as set forth in the 1963 Vienna Convention on Consular Relations, to which the United States is a contracting party and which even the U.S. State Department concedes constitutes binding customary international law. Apparently Bush Jr.'s left hand does not care about what his right hand does. Yet another international convention set at naught.
The one characteristic these detained foreigners have in common is that they are mostly Muslims, Arabs, and Asians. Everyone needs a scapegoat for the 11 September tragedy, and it looks like we have one, both at home and abroad. Thousands more such aliens are being moved into the pipeline for the Ashcroft gulag by the FBI.
Ashcroft is now planning to reinstate the infamous COINTELPRO Program, whose atrocities against the civil rights and civil liberties of the American People have been amply documented elsewhere.
It is just a matter of time before the Bush Jr. Leaguers unleash the newly-augmented powers of the FBI, CIA and NSA directly against the American People. (Professor Boyle was almost clairvoyant here in that his prediction has now come true) And we already have 2 million Americans rotting away in prison -- the highest rate of incarceration in the world, a disproportionate majority of whom are Americans of Color, victims of the Nixon/Ford, Reagan/Bush, and Clinton administrations' racist “war on drugs,” which is really a war against people of color. [32] The American Police State has already arrived for people of color!
Ashcroft's Police State
This brings the analysis to the Ashcroft Police State Act. There are no other words to describe it. While Bush failed to get a formal declaration of war that would have rendered him a constitutional dictator, clearly Attorney General John Ashcroft and his right-wing Federalist Society lawyers took every piece of regressive legislation off the shelf, tied it all into what they called an anti-terrorism bill, and then rammed it through Congress, giving it the appropriately Orwellian name of the U.S.A. Patriot Act. According to one report, Ashcroft's first draft would have had Congress suspend the ancient Writ of Habeas Corpus -- the necessary prerequisite for imposing a police state in the United States of America. Many Members of Congress publicly admitted that they did not even bother to read the Ashcroft Police State Act. Another Congressman said basically: “Right, but there's nothing new about that.” Interestingly enough the so-called liberal Democrats in the House and the Senate were willing to give Bush Jr. and Ashcroft more police state powers than the conservative Republicans in the House. But there are no real differences that matter between Republicans and Democrats when it comes to promoting America's self-proclaimed “Manifest Destiny” to control the World and now Outer Space too.
Bush's Kangaroo Courts
It would take an entire law review article for me to analyze all the legal and human rights problems with Bush Jr.'s proposed military commissions. Here a cabal of Federalist Society Lawyers in the White House got President Bush to sign a Presidential Order on 13 November 2001 which, when implemented, will be widely recognized to constitute a grave breach of the Geneva Conventions and establish a prima facie case of criminal accountability against the President himself. It is emblematic of this particular war that right towards its very outset President George W. Bush personally incriminated himself under both international criminal law and United States domestic criminal law. The Bush Jr. administration has severely undermined the integrity of the Four Geneva Conventions of 1949. By doing this, the Bush Jr. administration has opened up U.S. Armed Forces and civilians around the world to similar reprisals, which has already happened.
As a licensed attorney for 25 years, a law professor for 23 years and someone who has done a good deal of criminal defense work in U.S. Federal Courts, I am opposed to the insinuation of these Federalist Society Lawyers that America's Federal Courts established by Article III of the U.S. Constitution cannot hold accountable those responsible for the crimes of 11 September 2001. This is an insult to all Federal Judges, Federal Prosecutors, Federal Public Defenders and all the Lawyers who are Officers of these Courts.
In one fell stroke these Federalist Society lawyers have besmirched and undermined the integrity of two Branches of the United States Federal Government established by the Constitution -- the Presidency and the Judiciary. So far the U.S. Congress has supinely gone along with the Bush Jr. police state agenda. If and when these Bush/Ashcroft police state practices make their way to the U.S. Supreme Court, many of them will probably be upheld. After all, a 5 to 4 majority of the Supreme Court already gave the Presidency to Bush Jr. We need to seriously consider whether they would strike down laws and practices that would give Bush Jr. a Police State as well.
Philosophers have taught that a People get the type of government they deserve. If the American People permit the Bush Jr. Leaguers to impose a Police State at home in the name of furthering Pax Americana abroad, we will have deserved it by abnegating our responsibilities as Citizens living in what is supposed to be a constitutional Republic with a commitment to the Rule of Law. The same thing happened to the Romans and to the Athenians. The United States of America is not immune to the laws of history. Sic transit gloria mundi!
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Obama's US Assassination Program? Part 1
by: Chuck Norris
Human Events.com
Posted 07/27/2010 ET
Updated 07/28/2010 ET
Sound too conspiratorial to be true? Like the cover-up ops of spy novels? Well, it's reality. And it is possibly the most bizarre, inhumane and abusive way that the White House is expanding its power over the American people.
It's not an extremist belief or theory of the far right. It's a fact that has been confirmed by The New York Times, The Washington Post and MSNBC and even documented by the far-left online magazine Salon.com. (Glen Greenwald of Salon and Chuch Norris are at opposite ends of the political spectrum and yet both agree on this).
And it's the gravest nightmare of U.S. citizens and abandonment of our Constitution to date: a presidential assassination program in which U.S. citizens are in the literal scopes of the executive branch based upon nothing more than allegations of terrorism involvement as the branch defines it.
Of course, the CIA has executed covert assassinations of foreigners for decades. But tragically, Obama is expanding this program to include American, non-Islamic, stateside, homegrown terrorists.
It all started in January, when The Washington Post reported: "As part of the operations, Obama approved a Dec. 24 strike against a (Yemeni) compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture."
"A shortlist of U.S. citizens specifically targeted for killing"?
That's right. No arrest. No Miranda rights. No due process. No trial. Just a bullet.
While the Obama administration continues its Bush-blaming for the economy, it is mega-morphing Bush policy in covert ops overseas, which was, according to the Post, "to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests."
Well, in recent weeks, the Obama administration has taken this overseas killing op to a new low: stateside assassinations.
A former director of national intelligence, Adm. Dennis Blair, confessed before Congress: "We take direct actions against terrorists in the intelligence community. If we think that direct action will involve killing an American, we get specific permission to do that."
If you are wondering who the "we" are to whom Adm. Blair refers, they are Smith, Wesson and the White House.
Now we know what deputy national security adviser John Brennan meant when he admitted in May, "And under President Obama, we have built upon the work of the previous administration and have accelerated efforts in many areas." (Remember when Bush's eavesdropping on U.S. citizens seemed harsh?)
Brennan further explained then that the problem of homegrown terrorists ranks as a top priority because of the increasing number of U.S. individuals who have become "captivated by extremist ideology or causes." He went on to say, "There are ... dozens of U.S. persons who are in different parts of the world and ... are very concerning to us."
Do you think "different parts of the world" doesn't include their country of origin?
Conveniently, the Obama administration also is integrating a pervasive plan to ensure the termination of radicals as the feds deem them abroad and domestic, too, with the resurrection of the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, introduced by Rep. Jane Harman, D-Calif. Also known as H.R. 1955, it was passed in the House by the Democratic majority but was rejected by the Senate.
Everyone thought that legislation was dead until the Obama administration resurrected its tenets in its 52-page "National Security Strategy," released in May. So alarming is the feds' potential abuse of power that officials from London to the Kremlin are recognizing the threat to U.S. citizens.
The European Union Times reported, "Foreign Ministry reports circulating in the Kremlin today are warning that an already explosive situation in the United States is about to get a whole lot worse as a new law put forth by President Obama is said capable of seeing up to 500,000 American citizens jailed for the crime of opposing their government."
Woodrow Wilson, during his reign as president, incarcerated more than 2,000 U.S. citizens for speaking out against the government. And now for the first time since, a U.S. president is highlighting the threats of homegrown terror and literally hunting U.S. citizens as terrorists. One senior administration official said, "For the first time since 9/11, the (national security strategy) integrates homeland security and national security."
And what type of "integration" does that entail?
President Obama explained in an often overlooked statement within the "National Security Strategy": "We are now moving beyond traditional distinctions between homeland and national security. ... This includes a determination to prevent terrorist attacks against the American people by fully coordinating the actions that we take abroad with the actions and precautions that we take at home."
Could it be any clearer? Right out of the horse's mouth. Or do I need to spell out what "fully coordinating the actions that we take abroad with the actions and precautions that we take at home" means?
Remember the words "a shortlist of U.S. citizens specifically targeted for killing"?
That's right. No arrest. No Miranda rights. No due process. No trial. Just a bullet.
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