Customs and Border Protection (CBP) employees have been detaining journalists and immigration lawyers at checkpoints in Arizona and Texas and questioning them about their political beliefs. These are nothing more than intimidation tactics by government employees who don’t appear overly concerned that they work for all citizens of the United States, not merely the current presidential administration and its far right supporters.
CBP has long had too broad an authority, and particularly after World War II when Congress passed laws giving the agency the ability to regularly trespass on citizens’ rights under the Fourth Amendment to the Constitution. In 1953, without public review, the Justice Department specified the zone within which CBP could operate fast and loose with the Constitution at 100 air miles of the United States border. That’s 100 miles within the United States, all around the perimeter, an area encompassing nearly two thirds of the populace.
A sign at the January 2018 Womens’ March in Seneca Falls, New York. Photo by Marc Nozell.
It’s incredible these laws and rules have stayed on the books as long as they have and have withstood review by the Supreme Court. The Supreme Court has often interpreted the Constitution with an eye toward sustaining the power of the government over the citizen, however, despite the recent miraculous lapse in its ruling on Timbs v.Indiana, which rescinded civil asset forfeiture, also known as cops’ legalized stealing of citizens’ property. That ruling can best be considered an anomaly, at least from the Court’s five conservative justices, who with an even more recent ruling, in Nielsen v. Preap, are back to their usual shoring up of police state encroachments on the Constitution.
George Carlin performing in 2008 in Santa Rosa, California, just months before he died. “You Have No Rights” is the closing bit, and for the album made from this Home Box Office (HBO) special, It’s Bad for Ya, he was awarded a posthumous Grammy. Warning: foul language.
Supposedly these laws are meant to be enforced against illegal immigrants, who after all are not citizens. In practice, their overly broad authority allows enough room for CBP employees with a political agenda to harass and intimidate anyone they care to, citizens and non-citizens alike. The CBP employees can always claim some legal rationale for their capricious actions, and even after offering the flimsiest excuses, they know legal redress of their abuse of power will take years, if it comes at all. This is what happens when fear guides the writing of laws, giving too much authority to law enforcement agencies, and then a lawless presidential administration grasps the reins of all that power. Meanwhile the nation’s courts have too often upheld police prerogatives over citizens’ rights, eroding the meaning of those rights and mocking their supposed inviolability.
— Vita
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
— Eighth Amendment to the United States Constitution.
In a unanimous decision on February 20, the Supreme Court ruled against the state of Indiana in the case of Timbs v. Indiana, a ruling which effectively ends the notorious practice of civil asset forfeiture. The applicable clause in the Constitution is “nor excessive fines imposed”, and it’s a wonder the states have been able to get away with lawless civil asset forfeiture practices as long as they have, considering the clause seems plainly clear. Apparently the application of that particular right slipped through as long as it has because the country’s founders meant the Constitution to apply only to the federal government. The Supreme Court has been gradually redressing that error ever since, and on February 20 the Court closed the loophole by which police departments across the country had been stealing citizens’ property under state laws allowing the practice.
The altar screen of the Temple Church in London, setting out the text of the Ten Commandments according to the 1549 Book of Common Prayer. Photo by Jheald.
What’s most remarkable about this historic ruling is that it was unanimous. The Supreme Court’s balance is now five to four in favor of conservative justices, and typically when conservatives weigh law enforcement practices against the rights of citizens they have decided for the former. Considering what was at stake in this case, the miraculously unanimous decision speaks to just how corrupt policing for profit had become, and ending it slows the nation’s slide toward becoming a police state. Now police employees nationwide have to heed the Eighth Amendment to the Constitution as well as the Eighth Commandment which, carved in stone in Judeo-Christian culture, reads “Thou shalt not steal”.
They can make more progress by heeding other Commandments, too, such as the Sixth, a paraphrase of which states “Thou shalt not wantonly kill, and then have thy buddies on the force close ranks and cover it up for thee”. That last bit incorporates the Ninth Commandment against bearing false witness, saving time. What does all this have to do with technology? If the police can finally be made to start following rules that have been set in low-tech stone for millennia, perhaps moving along to rules for 21st century high-tech will follow, like whether the controversial practice of going on fishing expeditions to obtain DNA evidence violates citizens’ rights under the Fourth and Fifth Amendments to the Constitution. There are no equivalent strictures in the Ten Commandments. Perhaps the usual advocates on the Court for the police, the conservative justices, can rely on the Constitution alone and apply its plain as day language to the latest technology and once again vote unanimously for citizens’ rights.
— Techly
It’s hard not to notice the impact of the national security state in daily life, particularly for people who travel regularly or pay attention to news stories. Pat downs and x-rays at the airport, police road blocks with DNA swabs that are voluntary but are implied by the police to be mandatory, stop and frisk in minority neighborhoods, the shoot first and ask questions later garrison mentality of the police, SWAT team no-knock raids, and the nearly complete disregard by governmental authorities for citizens’ rights under Fourth Amendment protections against unreasonable or warrantless search and seizure operations.
It may be hard to believe it is the citizens of the republic who allowed their agents in government to accumulate all that oppressive authority. People like to think government has a natural tendency to creep into citizens’ lives and to aggrandize itself at their expense, and that is true. What people often fail to acknowledge, especially in a nominally democratic republic such as the United States, is their own complicity in allowing the government to get away with it.
Fear can cause people to do some foolish things, and one of them is relinquishing unchecked authority to government following a catastrophe, such as what happened after the events of 9/11/2001 in the United States. Save us! Kill them! The tendency of people to allow themselves to be stampeded toward war has long been noted by manipulators in government, industry, and the press, who have used it to their advantage. There is a long history in America of cynical manipulations toward war, but perhaps the most blatantly obvious occurred at the start of the Spanish-American War shortly before the turn of the twentieth century.
The citizenry are usually stirred to support these wars by patriotic fervor and by some wildly exaggerated stories in the popular press of atrocities supposedly committed by the new enemy. Most people tend not to take time away from their busy lives to examine things more closely and rationally. Remember the Alamo! Until thirty or forty years ago, except for the large scale conflicts of the Civil War and the two World Wars, Americans could largely go about their daily lives without reference to the far away battlefronts their leaders had stirred them up to support initially.
In the 1941 film Citizen Kane, Orson Welles as Charles Foster Kane, a newspaper publisher at the time of the Spanish-American War, throws a party to celebrate his hiring of the staff from a rival newspaper. His colleagues, played by Joseph Cotten as Jedediah Leland and Everett Sloane as Mr. Bernstein, provide commentary on the proceedings.
Superficially, that still seems to be the situation at home, where Americans can go shopping, while far away the world burns. Look more closely, however, and it becomes obvious that the so-called “War on Terror” is different than any other past war in that to a hitherto unprecedented degree it has allowed government to infiltrate lives at home as well as abroad in the name of security. The reasoning is that there is no “front”, as in a conventional war; the front is everywhere, and government must therefore defend everywhere, from flying drones over the huts of Afghani opium farmers to using the NSA to monitor the communications of American citizens.
A 2007 image of Susan Hallowell, Director of the Transportation Security Administration’s research lab, taken with the backscatter x-ray system, in use for airport security passenger screening. This is not the image that screeners see at the airports. The machine that took this image does not have the privacy algorithm.
People line up for security checks at the airport, the majority of them probably unconcerned with the larger issues of government oppression and infringements on their liberty as long as they can get through with minimal hassle to themselves. But the hassles will only grow. Highway road blocks and intrusive police demands will only increase. The courts will continue upholding these practices and implicitly grant the authorities ever more leeway in pushing people around in the name of security. The way the American military occupiers treated the Filipinos in the early years of the twentieth century continues reverberating in unexpected ways, such as in how it informed our use of torture in the early twenty-first century; our treatment of various Latin American countries throughout the twentieth century haunts our relations there and here to this day; and at last the methods, materiel, and mindset of occupation we are deploying throughout the world today, and particularly in the Middle East, have come home to us, the fearful perpetrators of so much unnecessary violence. That’s Homeland Security.
― Vita
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.
Salt Lake City Police Detective Jeff Payne may not know the law, but on July 26 at the University of Utah Hospital he was determined to do the bidding of his watch commander, Lieutenant James Tracy, who also does not know the law (making his order illegal), to draw a blood sample from the unconscious victim of a two vehicle crash so that police could determine whether he was impaired by drugs or alcohol at the time of the crash. Payne and Tracy were prevented from violating the constitutional rights of patient William Gray by Head Nurse Alex Wubbels, who informed them that it was against hospital policy, which follows the law, to allow police to draw blood from a patient without the patient’s consent, or without a warrant or the patient being under arrest. Ms. Wubbels’s line of legal reasoning did not set well with Mr. Payne, who grew frustrated with not getting his way and finally gave in to the temptation to abuse his authority by arresting the nurse, roughly slapping handcuffs on her, and frog marching her out to his squad car.
University of Utah Hospital in 2009. Photo by University of Utah Health Care.
Nurse Wubbels had to sit in the squad car for twenty minutes while police and hospital administrators sorted everything out, and then the cops let her go free. Ms. Wubbels held a press conference on August 31 with her lawyer, Karra Porter, where she showed portions of the police body camera videos from the July incident. The Salt Lake City police department placed Mr. Payne and another officer, probably Mr. Tracy, though they wouldn’t say, on paid administrative leave the following day. A paid vacation for behaving badly, usual police department internal procedure. Apparently the department hadn’t sought to discipline Mr. Payne at all before August 31, beyond temporarily taking him off the blood draw unit. If Wubbels and Porter hadn’t held their press conference and released the body cam videos, the police department and Payne and Tracy would most likely have gone about business as usual in short order. Now, because of all the stir this incident has belatedly created, they’ll have to wait a little longer. Ms. Wubbels has not yet pressed charges for assault and unlawful arrest.
Detective Payne apparently was claiming the right to draw blood without a warrant from the unconscious Mr. Gray under implied consent law, a police procedure which had been disallowed in Utah since 2007, and primarily used by police to gather evidence in drunk driving cases. Additionally, the Supreme Court of the United States in 2016 rolled back the part of implied consent relating to blood samples as too invasive. Police can still take breathalyzer samples without express consent. Payne and Tracy were either unaware of the change in the law or were so accustomed to rolling over hospital staff that the situation of a nurse challenging their authority had never presented itself to them before. In either case, the cops were in the wrong, making Detective Payne’s reaction even more outrageous.
A scene from the early 1960s television series Car 54, Where Are You? The dim witted Officer Gunther Toody, played by Joe E. Ross, is unimpressed by the discussion of high culture between his partner, Officer Francis Muldoon, played by Fred Gwynne, and the ride along cop in the back seat.
As a case of police brutality and abuse of authority this is small potatoes compared to what police perpetrate elsewhere around the country every day and without accountability. What makes this case notable is firstly the video evidence from the cops themselves, and secondly how the obtuseness of Mr. Payne leads him to escalate to violence what should have been a simple administrative procedure. Would it be too far fetched to ask that law enforcement officers know and understand the law? Is it too much to ask that they behave with adult restraint when they don’t always get their way? Who will ultimately pay the price for Mr. Payne’s ignorance and unwarranted belligerence other than the citizens and taxpayers of Salt Lake City?
Most likely he won’t have to pay a price, considering the way police are not held personally accountable. He may even get away with pleading ignorance of the law, an excuse the Supreme Court has recently ruled can be valid for police, even though anyone else who claimed ignorance would get laughed out of court. That’s why cops like Mr. Payne behave the way they do, because at the back of their minds they know they will get away with it. His accomplice in ignorance, Lieutenant Tracy, has a bachelor’s degree in criminal justice from Columbia College of Missouri, and he is currently studying to earn a master’s degree in the same subject from the same school. Payne himself attended college at Weber State University in Ogden, Utah, where he became certified as an emergency medical technician. Maybe these schools are diploma mills, or maybe Payne and Tracy are uneducable beyond passing tests necessary to jump career hoops.
Near the end of the 1939 film The Wizard of Oz, Frank Morgan as The Wizard grants a diploma to The Scarecrow, played by Ray Bolger, while the other members of the adventure look on. Despite his newfound brainpower, The Scarecrow still recites a famous mathematics theorem incorrectly.
Or they could just be stupid. Mr. Payne also works as an emergency medical technician for Gold Cross Ambulance. In one part of the video from Mr. Payne’s body cam, he is chatting amicably with other officers, apparently unconcerned over how his bullying has made Ms. Wubbels distraught as she sits in the police cruiser several feet away, and he remarks “I wonder how this will affect my Gold Cross job. I bring patients here.” And another officer says “Yeah, I don’t think they’re [who? the hospital staff? Gold Cross? probably both] going to be very happy with it.” Mr. Payne then declares “I’ll bring them all the transients and take good patients elsewhere.” There’s a 2012 nonfiction book by the philosopher Aaron James that Mr. Payne could read in order to further his studies and perhaps gain some insights into himself, and it’s called Assholes: A Theory.
― Ed.
So when they continued asking him, he lifted himself up and said unto them, He that is without sin among you, let him be the first to cast a stone at her.
― John 8:7 (Jubilee Bible 2000)
In any discussion of government surveillance, such as has been revealed by the recent WikiLeaks “Vault 7” release of CIA documents, there are some folks who are apt to pipe up with “Let the government spy on me – I have nothing to hide.” By that they presumably mean for their listeners to understand they are not terrorists, criminals, or perverts, and to drive home their utter lack of impure intentions they will often add a feebly humorous aside about how government agents would fall asleep from the boredom of eavesdropping on them. How reassuring to learn that government flouting of the Fourth and Fifth Amendments to the Constitution is okay because there are some among us who are without sin! Whether these folks realize it or not, their smug pronouncement comes out of them because in their lives the presumption of innocence has always been a given, and therefore government agents would have no interest in their good citizen behavior. It doesn’t seem to occur to them there are others in our culture who, through no fault of their own, are presumed guilty, and there are still others who are just as law abiding as the “nothing to hide” crowd, but may be concerned about hackers and thieves accessing their data, or simply want to be left alone and feel that their affairs are their own and should not be the concern of the government. We can use locks on our doors not only to keep out criminals after all, but nosy neighbors and government snoops as well.
Jesus and the Adulteress; drawing by Rembrandt.
The digital age has changed the game somewhat by introducing new channels of communication and cheap storage for vast quantities of information. The Fourth and Fifth Amendments are no less valid, however, in stating that citizens should be secure in their “effects”; that government officials need warrants; that citizens cannot be compelled to testify against themselves; and that government shall follow due process of law in proceedings against any citizen. Naturally the Founding Fathers did not foresee the age of computers, smartphones, and the internet. They didn’t need to foresee those things, because in looking back on thousands of years of ancient Roman and Greek law and English common law, they were able to extract valid principles which were applicable to the general human condition whatever the particulars of any one era might be. Since their time, we have moved from postal mail and personal messenger to phone calls and telegrams, and now to blog posts and email. Government snooping amounts to the same thing whatever the means of communication, and it is protection from the ends that the Founding Fathers wrote into the Constitution.
That much should be obvious, yet the erosion of the Bill of Rights continues bit by bit, often with the excuse that technology has wrought different contingencies in our modern era. There are no different contingencies – what has changed is that the state of emergency appears now to be permanent because it suits the agenda of powerful interests in the military-industrial complex. In the past, the United States government trampled rights for various reasons which seemed sensible to many at the time, from the Alien and Sedition Acts of 1798, to the Palmer Raids of 1919 and 1920, to the internment of Japanese-Americans in World War II. Always the advocates of such policies invoked a state of emergency to justify the abuse of state power, but eventually calmer heads and changing circumstances would prevail and the balance would be corrected.
A segment of Eisenhower’s January 17, 1961 farewell address, with commentary.
As long as there are enablers of government snooping who complacently and self-righteously announce to everyone within earshot that they “have nothing to hide,” dislodging the powerful interests invested in the current status quo and restoring a constitutionally correct balance between citizens and government will be a protracted struggle. Those who value the privacy of their communications enough to take measures to protect it, such as by using the Tor internet browser or encrypting their emails, are thereby presumed guilty of possible anti-state, criminal, or sexually deviant enterprises by government snoops and their sanctimonious “nothing to hide” enablers because the very action of taking privacy measures draws scrutiny from those groups and is something they deem an admission of being up to no good. It is as if the Fourth and Fifth Amendments have been turned upside down, and objecting to having snoops looking in the windows of your house and walking in through the front door any time they please is fussy obstructionism, definitely unpatriotic, and possibly prosecutable. The “nothing to hide” folks are unconcerned over these developments, secure as they are in the comforting knowledge of their own innocence, though they may want to keep in a corner of their uncluttered minds the notion that the perception of innocence by those in power can shift capriciously, and so they are well advised to note this paraphrased bit from a poem by the German Lutheran pastor Martin Niemöller: They came for the Privacy Advocates, and I did not speak out – Because I had nothing to hide.
― Techly
In May of 2016, Department of Justice officials wrote a memorandum seeking a warrant to search a Lancaster, California, premises and to force the occupants to unlock any phones or electronic devices with their fingerprints if the devices were equipped with that technology. This amounted to a fishing expedition to circumvent previous court rulings which held that law enforcement could not compel a criminal suspect to unlock an electronic device with their pass code because that would be a violation of the Fifth Amendment protection against self incrimination. It is unclear whether the DoJ ultimately received the warrant they sought because not all documents related to the case are publicly available.
“Creation of Adam,” by Michelangelo
Why is compelling a suspect to unlock a device with their fingerprint also not a violation of the Fifth Amendment? Because of a 2014 ruling in a Virginia Circuit Court which stated that fingerprints and other bodily attributes are not protected, while handing over a pass code to law enforcement is divulging of information, which is protected. Law enforcement has long been able to use a suspect’s physical characteristics to incriminate him or her, but has not been allowed to compel a suspect to give up information. The problem now is that technology has leaped ahead of current law, and judges and prosecutors are falling back on anachronistic case law to cope with the use of biometrics like fingerprints and iris scans to lock personal electronic devices. Case law going back one hundred years and more treats fingerprints as a way of determining a suspect’s culpability at a crime scene, not as a key to a suspect’s possessions which may or may not contain evidence. It is obtuse to claim that a fingerprint or any other biometric is not the same as a pass code when it is being used for the same purpose.
“All seeing eye,” from U.S. currency
The use of biometrics is springing up not only in consumer devices, but in technology used by the military and law enforcement. The 2002 film, Minority Report, depicts a dystopian future when law enforcement and advertisers make great use of biometrics, and those predictions are proving more accurate with each passing year. The Department of Justice already uses facial recognition technology for surveillance of people in public spaces, and as we have seen with the National Security Agency, the ability of modern digital storage to accumulate massive amounts of data encourages the practice of scooping up everything indiscriminately. Like a fishing trawler using a drift net, law enforcement intends to collect everything now, store it, and sort it all out later. They think they are being efficient and better safe than sorry. But people are not fish subject to by-catch, which ought to be obvious enough, and to be sure the Fourth and Fifth Amendments to the Constitution make the distinction clear.
– Techly
Randolph County, Georgia, Veterans Memorial Park Bill of Rights marker; photo by Michael Rivera
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