14 Years of Hysteria, Stupidity and Waste for No Good Reason

Some of us even predicted it back then.

Reader JB at TPM:

To me the most notable thing looking back on 9/11 13 years later is how crystal clear it is now that it was an anomalous event and not, contrary to all the rhetoric of the time, the dawn of a new era of domestic terrorism. The fact that basically nothing analogous – meaning a domestic terror attack planned and executed by foreigners or local cells funded by Al Queda or like groups -- has happened in the 13 years since is pretty incredible and unexpected. Perhaps more surprising still is that the only viable explanation for the dearth of attacks is that terrorists motivated to carry out attacks inside the United States do not exist.

We know this because, if they did exist, at least in any remotely capable form, they would have succeeded in carrying out dozens or hundreds of attacks by now because it is simply impossible to completely stop motivated terrorists from carrying out attacks in a free and open society with endless targets and no-questions-asked access to automatic firearm.

Could an attack happen tomorrow? Of course. But once every 13 years would still be an anomalous event, not a systemic threat. Remember the talk as the rubble smoldered of hundreds, maybe thousands, of “sleeper cells” lurking out there, waiting to strike? Well, we now know there were none at the time, and apparently none were formed even after we have fought two wars and killed thousands of innocent civilians since 9/11. One would think our actions in Iraq, Afghanistan, Pakistan, etcetera would spawn at least a few motivated and effective enemies bent on revenge through domestic attacks. Apparently not.

So, ironically, if we had done absolutely nothing in response to 9/11 aside from hold funerals and shake our heads in disbelief, we would have been no less safe than we are now after two useless wars, trillions of dollars and thousands of lives lost, and a decade of taking off our shoes for domestic flights. I’m not saying this was obvious when 9/11 happened. Far from it. I was just as freaked out as anyone else at the time and I think it would have been foolish to ignore the threat. But the fact is if we had we would have been far better off, because as it turns out there were not hundreds of other Mohammed Attas out there in the wings. In fact, there were none, at least not with any meaningful capabilities (which would exclude folks like the shoe bomber and the Tsarnaev brothers). We know this to be the case because if such people did exist we would have been hit 100 times over by now. It is too damn easy to sow terror and chaos with motivation and even a below average IQ. Think Newtown or D.C. sniper.

A few sad teenagers have committed far, far more domestic terror attacks than all the Islamic militants in the world over the past decade, and that is an outcome I think very few would have predicted, myself included, in the aftermath of 9/11. I’m sure the Rudy Guiliani set would love to take credit for the lack of attacks, but I think any serious expert on stopping domestic terrorism attacks would agree that the only way to bat as close to 1000 as we have is if your enemy is fictional.

"My greatest responsibility is the safety of the American people."

No, Mr. President.  Your greatest - your sole - responsibility is to uphold the Constitution of the United States of America. You know, the one that says nothing about the safety of the American people.  The one that does have something quite specific to say about the right of the American people to be free from government spying.

Let the Patriot Act die. Give us back our Fourth Amendment Constitutional Rights.



Full transcript here.

That Old Macho Obsession

Steve M on the criminal waste of time and money that is the NSA:

It's a macho thing. It's analogous to what we did with torture. Obviously, torture had to be the right thing to do, because it was so badass. Never mind assessing whether the torture would be effective (much less whether it would be consistent with our laws and professed values) -- we were cranking it up to eleven, and every real man knows deep in his groin that louder, more, harder, angrier, bigger is always better.

That's what we're doing with surveillance. Who cares if the program isn't actually preventing terrorist attacks? Who cares if we're collecting more data than we can process intelligently? Bigger is better! The amount of information we collect is huge! That complex in Utah we built to store all the data is massive! Isn't that all you need to know?

No, Kentucky State Employees, They Cannot Random Drug Test You

A substantial number of Kentucky state employees - nobody knows how many because each cabinet sets its own rules - are forced to submit to obviously unconstitutional random drug tests.

Many of them - under threat of losing their jobs - signed waivers of their Fourth Amendment right against warrantlesss search and seizure.

Now the Supreme Court has essentially told the State of Florida it cannot do the same.  Will anyone in Kentucky care enough to stop violating its employees' constitutional rights?

The U.S. Supreme Court refused Monday to hear an appeal by Florida Governor, Republican and presidential-candidate wannabe Rick Scott. Scott, since 2011, has been trying to mandate random drug tests for some 85,000 state workers because, yeah, drugs are bad or something. Scott’s executive order did not apply only to employees, such as drivers or pilots, whose duties might in fact be severely affected by drug use. Everybody, from receptionists to scuba divers, would be subject. By refusing to reopen the case, the Supreme Court agreed that Scott’s order was so broad as to violate Constitutional protections against unwarranted search and seizure.

The excuse for Kentucky's random drug tests has been that it is limited to "severely affected" employees. But in fact, it is forced on office workers who have no dangerous duty but who happen to work for a cabinet with thousands of employees, a handful of whom fall into the "severely affected" category. Over the last several years, unconstitutional random drug testing has become standard procedure, accepted by thousands as the price of keeping their jobs.

Shame on Governor Steve Beshear and the Kentucky General Assembly if they do not use this Supreme Court refusal to return to a constitutional regimen of drug testing only for probable cause.

Best Pulitzer Since Seymour Hersch on My Lai, Or Why We Need Real Newspapers And Fearless WhistleBlowers

I admit: As late as yesterday, I would have bet large sums of money that this would never, ever happen. I do not have the words to describe how happy I am to have been so very, very wrong.

Charles Pierce:

Hello? What's this?

Awarded to The Washington Post for its revelation of widespread secret surveillance by the National Security Agency, marked by authoritative and insightful reports that helped the public understand how the disclosures fit into the larger framework of national security...Awarded to The Guardian US for its revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.

Precisely correct. It never has been about the who. It always has been about the what, and the how, and especially the why, which latter never has been adequately explained by the all-too-human, but curiously error-prone people who thought they'd never have to explain anything to anybody.

QOTD: Charlie Pierce

On the justifications for President Obama's toothless and insulting NSA "reforms":

Wait a minute. "Advocates of civil liberties" -- which, damn it, ought to be all of us, including the president -- have to be "placated" but not at the expense of risking a "backlash" against the president from "national security agencies" which, ostensibly, work for him on our dime. The whole debate is backwards.

Myths of the NSA, Debunked

All 10 are great, but it's the last three that get to the heart of how thoroughly the terrist hysterics have bamboozled us:

Peter Van Buren at The Nation:

The debate Edward Snowden envisioned when he revealed the extent of National Security Agency (NSA) spying on Americans has taken a bad turn. Instead of a careful examination of what the NSA does, the legality of its actions, what risks it takes for what gains and how effective the agency has been in its stated mission of protecting Americans, we increasingly have government officials or retired versions of the same demanding—quite literally—Snowden’s head and engaging in the usual fear-mongering over 9/11. They have been aided by a chorus of pundits, columnists and present as well as former officials offering bumper-sticker slogans like “If you have nothing to hide, you have nothing to fear,” all the while claiming our freedom is in direct conflict with our security.

It’s time to face these arguments directly. So here are ten myths about NSA surveillance that need debunking. Let’s sort them out.

SNIP

8) Terrorists are everywhere and dangerous.

From 1776 to 2001 the United States did not experience a terror attack anywhere close to the scale of 9/11; the worst terror attack against the United States as of 9/10, the Oklahoma City bombing, claimed 168 lives compared to some 3,000 at the Twin Towers. Since 9/11 we have not had a comparable mass-scale terror attack. No dirty bombs at the Super Bowl, no biochemical nightmares, no suicide bombers in our shopping malls or theme parks. There have been only about twenty domestic terror-related deaths since 9/11. Your chances as an American of being killed by a terrorist (the figures are for the world, not just inside the US) are about 1 in 20 million. The inevitable comparison shows the odds of being struck by lightning at 1 in 5.5 million. You are, in other words, about four times more likely to be struck by lightning than killed by a terrorist. Most of the “terrorists” arrested in this country post-9/11 have been tragicomic fabrications of the FBI. 9/11 was a one-off, an aberration, so unique that its “success” stunned even Osama bin Laden. It was a single morning of disaster and cannot be the justification for everything the government wishes to do forever after.

9) We’ve stayed safe. Doesn’t that just prove all the government efforts have worked?

No, that’s called false causality. There simply is no evidence that it’s true, and much to the contrary. It’s the same as believing government efforts have prevented Martian attacks or wild lions in our bedrooms. For one thing, we already know that more NSA spying would not have stopped 9/11; most of the needed information was already held by the US government and was simply not properly shared or acted upon. 9/11 was a policy failure, not a matter of too-little snooping. Today, however, it remains a straw-man justification for whatever the NSA wants to do, a way of scaring you into accepting anything from the desecration of the Fourth Amendment to taking off our shoes at airport security. But the government uses this argument endlessly to promote what it wants to do. Even the NSA’s talking points recommend their own people say: “I much prefer to be here today explaining these programs, than explaining another 9/11 event that we were not able to prevent.”

At the same time, despite all this intrusion into our lives and the obvious violations of the Fourth Amendment, the system completely missed the Boston bombers, two of the dumbest, least sophisticated bro terrorists on the planet. Since 9/11, we have seen some 364,000 deaths in our schools, workplaces and homes caused by privately owned firearms, and none of the spying or surveillance identified any of the killers in advance.

Maybe we should simply stop thinking about all this surveillance as a matter of stopping terrorists and start thinking more about what it means to have a metastasized global surveillance system aimed at spying on us all, using a fake argument about the need for 100 percent security in return for ever more minimal privacy. So much has been justified in these years—torture, indefinite detention, the Guantánamo penal colony, drone killings, wars and the use of Special Operations forces as global assassination teams—by some version of the so-called ticking time bomb scenario. It’s worth getting it through our heads: there has never been an actual ticking time bomb scenario. The bogeyman isn’t real. There’s no monster hiding under your bed.

10) But doesn’t protecting America come first—before anything?

What exactly are we protecting from what? If, instead of spending trillions of dollars on spying and domestic surveillance, we had spent that same money on repairing our infrastructure and improving our schools, wouldn’t we now have a safer, stronger America? Remember that famously absurd Vietnam War quote from an American officer talking about brutal attack on Ben Tre, “It became necessary to destroy the town to save it”? How can anyone say we are protecting our liberty and freedom by taking it away?

AynRandy Attacks Surveillance Abomination with Popgun

If only there were some group of people, maybe chosen by their fellow citizens, who had the authority to vote on proposals that would have the force of law ....

But teabagger morons like the Tribble-Toupeed One think the U.S. Senate is for grandstanding, not lawmaking.

Sam Youngman at the Herald:

U.S. Sen. Rand Paul said Friday night he is planning to file a class-action lawsuit against the Obama administration over the National Security Agency’s (NSA) collection of data through domestic surveillance programs.

The U.S. Supreme Court declared Smirky/Darth's "terrorist" roundup and detention program unconstitutional, and not only did Shrub ignore the ruling, Obama still ignores it to this day.

You want the NSA stopped, Senator Paul? Then propose legislation to that effect and persuade your fellow members of Congress to pass it with veto-proof majorities.  That's what the taxpayers are paying you to do.

But that won't rev up the mouth-breathers in Iowa like yelling "I sued their asses!"

Demand Your Rights and Get Tortured

Not in Russia.  Not in China. Not in Iran. Not even in Afghanistan.

Right here in the American Heartland.

Digby:

I wrote about this incident when it happened because of the malicious use of tasers, but this article discusses it in the context of "internal security checkpoints" and the growing civil disobedience against it:

During a routine trip from San Diego to Phoenix in 2009, Pastor Steven Anderson was stopped at an internal immigration checkpoint about 70 miles from the Mexican border. A stern-looking Border Patrol agent asked Anderson to provide proof of citizenship and requested permission to search his car.

The persistent pastor declined both, citing his Fourth Amendment protection against unreasonable searches and his Fifth Amendment right against self-incrimination. He then asked to be allowed to go on his way. The request was denied.

After a period of dithering, agents announced that a police dog had alerted to potential contraband in the vehicle. They instructed Anderson to pull over into a secondary inspection area. The pastor repeatedly refused, at which point a Border Patrol agent and a state police officer simultaneously broke both windows of his car and shot the pastor with Tasers from each side, delivering lengthy and repeated shocks while Anderson repeatedly screamed in agony.

The brutality was captured on video. Anderson's hand-held camera recorded events until moments after he was shocked, and CCTV footage captured much of what came afterward. In recorded testimony the following day, Anderson described how one of the agents involved with the incident shoved the pastor's head into the shards of broken window glass while dragging him from the car, and forced him to the ground. Other agents joined the action, with one repeatedly beating Anderson with a baton.

Lying helplessly on the ground, the pastor was again shocked with Tasers. After several minutes, the agents finally pulled up his bloodied body and took the broken man into custody.

Anderson is a hero to the members of a growing national cause. A decentralized movement of refuseniks is increasingly fighting back against the Border Patrol's shocking internal checkpoint system. Through civil disobedience, legal challenges, and generous helpings of YouTube, these ID scofflaws may be getting bloody, but they are actively challenging the constitutionality of a system most Americans don't realize exists.

I realize this is yet another of those "who cares, if you have nothing to hide why not cooperate" things for a lot of people. And I admit that I would be reluctant to put my big bloggy mouth where my money is and personally challenge cops carrying tasers, batons and guns myself. But it is another example of how the post 9/11 police state has expanded what used to be a pretty sleepy little program that featured a couple of somnambulant cops out in the middle of nowhere looking for trucks full of immigrants into full-fledged quasi military checkpoints.

Just consider for a moment the picture of federal officers repeatedly beating and tasering a person on the basis of his assertion of his 4th and 5th amendment rights. That just can't be right.

This reads exactly like the descriptions we heard in high school of daily life behind the Iron Curtain - beatings and torture and humiliation without cause, just to intimidate and keep the population terrorized. The kind of thing that could never happen in America.

I do not have the words to describe how this breaks my heart.

Flush Your Cell Phone. Do It Now.

Digby asks What if Big Brother is Your Crazy Brother-in-Law?

Everyone says the good news about the NSA spying is that they assure us that they have no interest in using all the information they're filing away about Americans. Unless we are a terrorist or know someone who is a terrorist or know someone who knows someone who might be a terrorist, (or might accidentally be overheard committing what someone might think is a crime) we have nothing to fear from all this surveillance.

Well, maybe not from the NSA, at least not this afternoon.  But they aren't the only game in town:

The National Security Agency isn't the only government entity secretly collecting data from people's cellphones. Local police are increasingly scooping it up, too. Armed with new technologies, including mobile devices that tap into cellphone data in real time, dozens of local and state police agencies are capturing information about thousands of cellphone users at a time, whether they are targets of an investigation or not, according to public records obtained by USA TODAY and Gannett newspapers and TV stations. 

The records, from more than 125 police agencies in 33 states, reveal: About one in four law-enforcement agencies have used a tactic known as a "tower dump," which gives police data about the identity, activity and location of any phone that connects to the targeted cellphone towers over a set span of time, usually an hour or two. A typical dump covers multiple towers, and wireless providers, and can net information from thousands of phones.

In most states, police can get many kinds of cellphone data without obtaining awarrant, which they'd need to search someone's house or car. Privacy advocates, legislators and courts are debating the legal standards with increasing intensity as technology — and the amount of sensitive information people entrust to their devices — evolves.

Many people aren't aware that a smartphone is an adept location-tracking device. It's constantly sending signals to nearby cell towers, even when it's not being used. And wireless carriers store data about your device, from where it's been to whom you've called and texted, some of it for years.

The power for police is alluring: a vast data net that can be a cutting-edge crime-fighting tool. 

SNIP

And they're collecting boatloads of it:

Law-enforcement records show police can use initial data from a tower dump to ask for another court order for more information, including addresses, billing records and logs of calls, texts and locations. 

Cellphone data sweeps fit into a broadening effort by police to collect and mine information about people's activities and movements. 

Police can harvest data about motorists by mining toll-road payments, red-light cameras and license-plate readers. Cities are installing cameras in public areas, some with facial-recognition capabilities, as well as Wi-Fi networks that can record the location and other details about any connecting device.

It is, unsurprisingly, being misused by local yahoos for their own purposes:

Some examples of documented misuse of cellphone data-gathering technology: 

In Minnesota: State auditors found that 88 police officers in departments across the state misused their access to personal data in the state driver's license database to look up information on family, friends, girlfriends or others without proper authorization or relevance to any official investigation in 2012. And those were just the clear-cut cases. Auditors said that more than half of the law enforcement officers in the state made questionable queries of the database, which includes photos and an array of sensitive personal data.  

SNIP

It isn't just Big Brother who's watching our every move. It's our crazy brother-in-law too. Just casually accepting this seems like a bad idea to me.

All that information is from a major USA Today and Gannet investigation that everyone should read. I get that  most people don't see this as any big deal --- they've seen it used on Law and order and it caught "the bad guy."  But in real life this adds up to the police having access to a whole lot of personal information without any probable cause or a warrant and that adds up to way more power in the hands of police.  And they already have too much.

Violent Threats Are Not Terrorism

Have these morons never heard of the boy who cried wolf?  Twelve years of screaming "terrists" at every convenient shadow is already making it more difficult to deal with actual terrorism, and that's not counting the damage to the homefront of making every potential criminal a homegrown bin Laden.

Digby:

Ok, this kid apparently deserves to be locked up. I'm certainly not defending his behavior. And they don't appear to be ready to send him to Gitmo. But if they're starting to call threats like this "terrorism" we are into a whole new realm in American criminal justice because we've just spent the last decade fashioning legal theories around the idea that "terrorism" is such a uniquely horrifying threat that we can no longer afford to follow constitutional principles. We've created prison camps, we've tortured, we've got people locked up for life without trial. We have created a massive surveillance apparatus that's blown a hole through the fourth amendment. "Terrorism" is a catch-all term for the government police authorities to pretty much throw the constitution out the window if it wants to.

I think everyone's been soothing themselves that this will only apply to immigrants and/or Muslims, so it's not a biggie. But that's very foolish. Once you give the government a rationale for throwing out the book, they're going to find ways to do it. This is why granting "exceptions" to the constitution for "bad men" is such a fatuous idea. The police would love to have the power to simply designate someone a "bad man" for whom the normal rules don't apply. Unfortunately, police aren't infallible and sometimes the "bad men" are the police themselves. That's why the old boys wrote the constitution and the Bill of Rights in the first place.

In combination with "predictive policing" based on NSA's comprehensive data on each and every one of us, it means we're all headed for Guantanamo; it's just a question of when.

Anything on Your Cell Phone You Don't Want the Police to See?

Tough. They get it anyway. The Obama Administration says Fuck your Fourth Amendment Rights.

Digby:

This would conveniently make it so that the local, state and federal police can just seize someone's phone to get all that lovely personal data without having to make up some phony rationale about it being related to terrorism. (That whole thing's getting a little touchy, dontcha know?)

If the courts ultimately side with the Obama administration, anyone can be arrested on a trumped up charge, their cell phone seized, their email and other personal info accessed all without probable cause. And heck, if they just happen to find something ... well, that's your bad luck isn't it? If you don't have anything to hide ...

This has nothing to do with keeping the babies safe and everything to do with a government that has decided that the 4th Amendment is getting in its way and that an expectation of privacy is an anachronism that only a bunch of irrelevant cranks or criminals care about. I don't see how you can interpret their actions any other way.

In a small town or rural area, this means that a local cop or deputy with a grudge can cause an enormous amount of personal and community damage and do so with impunity.

Just like the lord's minions did to serfs back in the good old days of feudalism.

Teaching Brainless Obedience

It works. Much more easily and more effectively than you think it does.

Digby:

Fergawdsakes. Just how many squads of armed Robocops running around rousting citizens for no good reason does this land of the free need?:

As hundreds of commuters emerged from Amtrak and commuter trains at Union Station on a recent morning, an armed squad of men and women dressed in bulletproof vests made their way through the crowds.

The squad was not with the Washington police department or Amtrak’s police force, but was one of the Transportation Security Administration’s Visible Intermodal Prevention and Response squads — VIPR teams for short — assigned to perform random security sweeps to prevent terrorist attacks at transportation hubs across the United States.

“The T.S.A., huh,” said Donald Neubauer of Greenville, Ohio, as he walked past the squad. “I thought they were just at the airports.”

With little fanfare, the agency best known for airport screenings has vastly expanded its reach to sporting events, music festivals, rodeos, highway weigh stations and train terminals. Not everyone is happy.

T.S.A. and local law enforcement officials say the teams are a critical component of the nation’s counterterrorism efforts, but some members of Congress, auditors at the Department of Homeland Security and civil liberties groups are sounding alarms. The teams are also raising hackles among passengers who call them unnecessary and intrusive.

SNIP

They even admit that this is mostly Security Theater. And that sounds so sweetly benign, doesn't it? But the effect of this isn't, in the end, to make little old ladies feel safer by confiscating the 8oz bottle of Geritol in their handbags. It's to train citizens to submit to authorities without probable cause. That's exactly what's happened in airports, after all. Americans are so docile about it that people in other countries are astonished to see us taking off our shoes and otherwise disrobing at airport security without even being told. (They don't have to.)

If what you desire is to make the Bill of Rights an anachronism, this is the sort of thing that works over time to make people wonder why they ever cared that they had any privacy or right to demand that authorities have good reason to stop and search them. Arguments against it already have the tone of something from another era:

“The problem with T.S.A. stopping and searching people in public places outside the airport is that there are no real legal standards, or probable cause,” said Khaliah Barnes, administrative law counsel at the Electronic Privacy Information Center in Washington. “It’s something that is easily abused because the reason that they are conducting the stops is shrouded in secrecy.”

T.S.A. officials respond that the random searches are “special needs” or “administrative searches” that are exempt from probable cause because they further the government’s need to prevent terrorist attacks.

That mentality says that the War on Terror means anything goes. Forever. And it's much more convenient than the communist threat ever was because they could actually declare the cold war over at some point. This one will never end. How could it? It's not a war against a state or even against certain people, it's a war against asymmetric war. That's not going anywhere.

And anyway, so far it hasn't really been about terrorism at all. Surprise:

In 2011, the VIPR teams were criticized for screening and patting down people after they got off an Amtrak train in Savannah, Ga. As a result, the Amtrak police chief briefly banned the teams from the railroad’s property, saying the searches were illegal.

In April 2012, during a joint operation with the Houston police and the local transit police, people boarding and leaving city buses complained that T.S.A. officers were stopping them and searching their bags. (Local law enforcement denied that the bags were searched.)

The operation resulted in several arrests by the local transit police, mostly for passengers with warrants for prostitution and minor drug possession. Afterward, dozens of angry residents packed a public meeting with Houston transit officials to object to what they saw as an unnecessary intrusion by the T.S.A.

“It was an incredible waste of taxpayers’ money,” said Robert Fickman, a local defense lawyer who attended the meeting. “Did we need to have T.S.A. in here for a couple of minor busts?”

Smell that freedom people!

Also too: they called it "VIPR" like some cheesy cop show from 1976. Doesn't that say it all?

AynRandy Proposes Warrants the Law Already Requires

Classic Teabagger/Repub/Moron response to an outrage: ignore the facts, lie about the problem, propose changes that won't accomplish anything.


From the AP:

Senator Rand Paul has introduced legislation that would require a warrant before any government agency could search the phone records of Americans.

Responding to the furor over the disclosure of the National Security Agency program, Paul says the bill introduced Friday is intended to stop the NSA from spying on U.S. citizens.

Read more here: http://www.kentucky.com/2013/06/07/2669671/gop-senator-introduces-bill-on.html#storylink=cpy

What the Tribble-Toupeed One doesn't understand: FISA - the federal law covering national security intelligence gathering - already requires warrants. Verizon turned over its customer records after receiving a FISA court warrant.

But a pointless bill gets him on the front pages, excites the libertarian rubes and will play well in Iowa and New Hampshire in 2016, and that's all he cares about.

Government Spying Takes a Brush-Back Pitch

It's just one decision by one federal district judge, but it's the biggest push-back yet against warrantless spying on innocent American citizens.

Kevin Drum:

You remember National Security Letters, don't you? Those of us who are a first name basis just call them NSLs. They've been around for a while, but they only became famous after the PATRIOT Act vastly expanded their scope, with the FBI now issuing upwards of 25,000 NSLs a year. The key thing to know about NSLs is that (a) they don't require a judge to sign off on them, any old FBI supervisor will do; and (b) you are forbidden to tell anyone that you have received an NSL. In 2007, the Justice Department's inspector general found widespread abuse of the NSL process—hardly a surprise when there's no oversight—but the number of NSLs issued has continued its steady upward rise regardless.

(Last week), a judge finally put her foot down:

On Friday, a federal judge in San Francisco declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The government has failed to show that the letters and the blanket non-disclosure policy "serve the compelling need of national security," and the gag order creates "too large a danger that speech is being unnecessarily restricted," U.S. District Judge Susan Illston wrote.

She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.

This is almost certainly only temporary good news. DOJ will appeal, and I suspect it's unlikely that Illston's order will be allowed to stand. Still, it's nice to see a bit of common sense over these things, even if it's ultimately only symbolic.

TSA Finally Has to Pay Up for Terrorizing Innocent Travelers

So it's a tossup whether the TSA is too stupid to recognize the Bill of Rights when they see it or too fascist to understand what it means.

 

Ed Kilgore at Washington Monthly:

 A potentially important story was reported by Wired’s David Kravets on Friday, though it resulted in nary a peep from the national media.

A Virginia man named Aaron Tobey, detained for 90 minutes by the Transport Security Administration in 2010 for revealing an abridged version of the fourth amendment scrawled on his chest, was awarded $250,000 in a civil suit against the TSA.

TSA officials could have just rolled their eyes at Tobey, told him to put on his shirt and move along, dismissing the act as harmless civil disobedience.

Instead, they proved why his grievances are legitimate:

According to the suit, while under interrogation, the authorities wanted to know “about his affiliation with, or knowledge of, any terrorist organizations, if he had been asked to do what he did by any third party, and what his intentions and goals were.”

But another branch of the U.S. government was decidedly more sympathetic. The Fourth U.S. Circuit Court of Appeals ruled 2-1 in Tobey’s favor, citing Benjamin Franklin’s proclamation about the need for liberty to trump that for security.

The reason this case is important, however, isn’t just the mere symbolism. In recent years, activists affiliated with WikiLeaks have been detained by federal officials at airports for doing what mainstream journalists do all the time.

SNIP
I’m no legal expert (an admission that I’m sure will elicit strong agreement in the comments section). But the ruling in Tobey’s case could set a precedent that affects airline travelers who sue the government for harassment and other forms of undue inconvenience. If nothing else, the ruling shows that at least some judges refuse to buy the need for the national security doctrine to outweigh civil libertarian concerns at the airport. And that’s crucial if the Constitution is to mean anything, considering how normalized airline travel has become.

Fourth Amendment Water Too Hot For You Yet?

Speaking of losing our constitutional rights ....

 

Ars Technica:

Statistics obtained by the American Civil Liberties Union provides additional evidence that government surveillance of Americans has skyrocketed in recent years. The government is legally obligated to release reports about its surveillance activities, but it refused to do so until the ACLU sued to compel the production of the documents.

The reports concern what lawyers call "pen register" and "trap and trace" records. These terms originally referred to hardware devices law enforcement could attach to the phone network to capture information about (but not the contents of) phone calls. Pen registers recorded outgoing phone numbers. Trap and trace devices recorded incoming phone numbers.

Today's telephone networks have the ability to capture this information without any special equipment. And the government has expanded the concept to include other forms of communication such as email.

The legal standard for conducting this kind of non-content surveillance is less stringent than the rules for conducting a wiretap. To get a wiretap order, the government must convince a judge that it is essential to an investigation, but pen registers must merely be "relevant" to an investigation to obtain the approval of a judge.

The statistics uncovered by the ACLU show a striking increase in the frequency of government surveillance. Here is the number of orders issued by the government over the last 12 years:

SNIP

Why is the government spying on us so much more than it did just a decade ago? The terrorist attacks on September 11, 2001 were surely one motivating factor. But it can hardly explain the sharp increase in the last two years. Another important factor is likely just supply and demand. As information technology in general has gotten cheaper and more powerful, the technology to capture and store large amounts of intercepted data has also gotten cheaper. So economic constraints that limited the amount of data the government could collect in the past has become less and less of a constraint.

That old story about slowly boiling a frog isn't true: as soon as the water gets too hot, the frog will jump out of the pot.

If only we were that smart.

More Drug War Stupidity in Lexington

No, there's no pot decriminalization or medical marijuana legalization on Kentucky's November ballot. We're still wasting scarce police and court resources confiscating bongs.

Josh Kegley at the Herald:

One month after narcotics officers raided The Botany Bay, a smoke shop on Winchester Road, police have not filed the search warrant that led them to issue criminal charges and seize thousands of dollars worth of items.

The absence of the warrant, which typically become public record when criminal charges are filed, has fueled statements from friends and colleagues of store owner Ginny Saville that the Aug. 20 search and seizure was unjustified.

For those of you in non-tobacco states, a '"smoke shop" is not what you think it is. It's a store that specializes in tobacco products - cigarettes, cigars, snuff, loose tobacco - and paraphernalia like rolling papers and pipes.

That some tobacco paraphernalia has a coincidental dual use for non-tobacco vegetation is a long-standing burr under police saddles and an unconstitutional excuse to bust dirty fucking hippies for being dirty fucking hippies.

Saville's case could be among the first to test the constitutionality of a new state law banning entire classifications of synthetic drugs. Her attorney said the substance being sold at Botany Bay was not specifically listed in the Kentucky Revised Statutes as a "synthetic cannabinoid," an ingredient which mimics the effects of marijuana.

Instead, the store was busted based on a "catch-all phrase" included in the statute, Richardson said. The phrase bans "any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration" or sold within the guidelines of federal laws.

Richardson said the addition is unconstitutional because retailers can't always know if a substance they're selling qualifies. He said The Botany Bay independently had the substance tested in a laboratory and deemed it legal.

Funny how the multi-billion-dollar drug war is never on the list of stupid, expensive, counter-productive government programs that should be scrapped to reduce the deficit.

Also, notice the political sign in the Botany Bay's front window in this photo.

Read more here: http://www.kentucky.com/2012/09/19/2343172/owners-of-store-raided-in-august.html#storylink=cpy

Read more here: http://www.kentucky.com/2012/09/19/2343172/owners-of-store-raided-in-august.html#storylink=cpy

ACLU Out to Corral Out-of-Control ICE

The last decade has left the Fourth Amendment battered and gasping for life, but not yet dead. So "Warrants? We don't need no steenkin' warrants" is still a lie.

Susie Madrak at Crooks and Liars:

Wingnuts are so fixated on the Second Amendment, they completely miss the Fourth. With the increasing militarization of police departments and federal agencies, such legal formalities as warrants go right out the window:

On the night of October 20, 2010, Angel Enrique and Jesus Antonio were in bed in their small, two-bedroom apartment in the Clairmont complex in Nashville. The doors and windows were all shut and locked.

Suddenly there was a loud banging at the door and voices shouting "Police!" and "Policia!" When no one answered, the agents tried to force the door open. Scared, Jesus hid in a closet. Immigration and Customs Enforcement (ICE) agents began hitting objects against the bedroom windows, trying to break in. Without a search warrant and without consent, the ICE agents eventually knocked in the front door and shattered a window, shouting racial slurs and storming into the bedrooms, holding guns to their heads. When asked if they had a warrant, one agent reportedly said, "We don't need a warrant, we're ICE," and, gesturing to his genitals, "the warrant is coming out of my balls."

The Fourth Amendment strictly prohibits warrantless intrusions into private homes and the Constitution's protections apply to both citizens and non-citizens alike. In the absence of a judicially authorized warrant, there must be voluntary and knowing consent; ICE officers forcing themselves into someone's home does not constitute consent.

The ACLU and ACLU of Tennessee this week filed a lawsuit in federal court on behalf of fifteen residents of the apartment complex who were subjected to this large-scale, warrantless raid by ICE agents and Metro Nashville police officers.

If you could have only one constitutional amendment to protect America from becoming Saudi Arabia or Syria, it would have to be the Fourth. More even than the First, the Fourth Amendment's protections against unwarranted searches is the last bulwark against the Security State.

Obama's Supreme Court Appointees Join Right Wing in Gutting Fourth Amendment

Yeah, I told you Sotomayor and Kagan were pro-corporate shills. Now it turns out they're anti-civil-rights wingnuts, too.

Thank you, President Obama, for delivering the most right-wing, anti-constitutional Supreme Court since Roger Taney's Dred Scott majority.

Scott Lemieux at Lawyers, Guns and Money:

Since 1961, the Supreme Court has held that evidence illegally obtained by states is not admissible in court. Beginning with the Rehnquist Court, however, the Curt has been carving out various exceptions to the rule. The most important and problematic of these exceptions is the “good faith” exception, which holds that evidence should be admissible if police officers obtained it in good faith, but the search was illegal because of errors by other actors. The problem is that there’s no clear reason why the incentives of the exclusionary rule should apply only to police officers, as opposed to all agents of the state.

Today, the Court has found yet another exception. The police conducted a search that was ruled to be a violation of the 4th Amendment, but was legal at the time under an 11th Circuit precedent. In an opinion by Alito, the Court held that the good faith exception prevents the rule in this case from being applied retroactively. The problem, as Breyer’s dissent notes, is that (in an increasing Roberts Court tradition) this leaves someone whose rights have been violated without a remedy. Ominously, this was a 7-2 decision, with neither of Obama’s appointments joining Breyer and Ginsburg in dissent.