Monday, April 2, 2012

Bye Bye Bill of Rights/ NY Times

Welcome to the 2012 US Homeland.   Where'd we mislay that old Constitution?

Ours is now the land of extrajudicial killings performed by drones; strip searches for speeding, or for bicycling without an audible bell or having a too-audible muffler; widespread extralegal cell phone surveillance by police, mobile phone companies (for whom it is a new revenue stream), and apparently anyone who can afford the equipment.

I tried hard to avoid blogging about these issues, but they finally got the better of me.   The following three NYT articles are full of dismaying details about our disappearing civil rights. The first article is entitled, "Secret US Memo Made Legal Case to Kill a Citizen."  Some DOJ flunky, following on the heels of the Bush torture/'Geneva Conventions are quaint' memo, came up with an argument that it was perfectly legal to murder a US citizen without any charges or trial.  Smarter than John Yoo, this DOJ flunky's memo is classified.  So we cannot read it or challenge it in the courts.  The ACLU has just asked for clarification:  exactly what is the process for determining who to assassinate, when and how?  Who makes these decisions?  And Nass wonders how is this behavior different from the KGB?

According to the Times:
... The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis...

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.
Granted the US government is unlikely to kill anyone reading this with a drone.   But 13 milion Americans are arrested each year.  Several of my readers might be arrested.  If you are, you are now subject to exposing your private parts for law enforcement.

Today's NYT tells us the Supreme Court Ruling Allows Strip-Searches for Any Offense.  The Supremes voted 5-4 to make you spread those cheeks, as was required of the litigant in this case, when he was mistakenly jailed for not having paid a ticket (which had in fact been paid), after his wife was pulled over for speeding and he was a passenger in the vehicle.  Yes, you heard me right.
... The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration. So were victims of sexual assaults and women who were menstruating...
I think the word privacy will soon be omitted from our lexicon.  The Facebook generation, according to those near and dear to me, chooses to be as transparent as possible.  What is the big deal if Big Brother (make that governments and businesses) can see your every move using your GPS, hear your thoughts via your cell phone, email and tweets, and observe all your purchases via your charge card?  Surely you didn't think you had anything to hide in 2012?

The final NYT article is titled "Police Are Using Phone Tracking as a Routine Tool."  Excerpts follow:
WASHINGTON — Law enforcement tracking of cellphones, once the province mainly of federal agents, has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services...
The internal documents, which were provided to The New York Times, open a window into a cloak-and-dagger practice that police officials are wary about discussing publicly. While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

... in Arizona, even small police departments found cell surveillance so valuable that they acquired their own tracking equipment to avoid the time and expense of having the phone companies carry out the operations for them. The police in the town of Gilbert, for one, spent $244,000 on such equipment. 

... Another training manual prepared by California prosecutors in 2010 advises police officials on “how to get the good stuff” using cell technology.  The presentation said that since the Supreme Court first ruled on wiretapping law in 1928 in a Prohibition-era case involving a bootlegger, “subtler and more far-reaching means of invading privacy have become available to the government.”  Technological breakthroughs, it continued, have made it possible for the government “to obtain disclosure in court of what is whispered in the closet...”
How 'bout Google?  Isn't their motto "Don't be Evil"  and don't they have a new privacy policy?

Well, according to JDSupra, Google's new "privacy" policy:
"will aggregate data it collects on users across its products (with the exception of Google Wallet and Google Books) and develop a “mega-profile” on each user. That data collection includes a user’s Google searches, Gmail messages content, YouTube favorites, and contacts. It also includes location tracking."
Welcome to the brave new world.


r. rowley said...

"Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband."
It seems to me that Breyer's interpretation is more reasonable.

Seattle Reader said...

Are these decisions even in any doubt before being looked at by the Supreme Court? I notice from this article, that, in a typical pattern, the decision was 5-4, with all justices appointed by Republican presidents voting for, and all justices appointed by Democrat presidents voting against. Can we just save time and expense by having the decisions handed down before the case is heard?