Crime lab fingered for falsifying up
to 30,000 cases in Massachusetts...
Supreme Court rules warrantless searches legal.
Supreme Court rules police dogs can
give probable cause for searches without consent.
Dog searches are in error as high as 96% yet the Supreme
Court now allows them to create probable cause for warrantless searches.
Incredible.
Risks of searches
If one has contraband, then one gets
the legal consequences. However, the danger of a search of your
car/property is that a "bag" could fall out of a police officer's
pocket and you would get your car forfeitured likely.
Most law enforcement personnel are
honest and dedicated. However, the crime lab story above illustrates that
some in law enforcement will cross ethical boundaries at times.
Consider the profitability to a
small town of the forefeiture of a new $50,000 motorhome or Cadillac
Escalade SUV..... multiple times.
Who determines if the dog is giving
the correct signal?
Who polices the dog handlers?
Date: Friday, March 15, 2013, 8:08 PM
Privacy World - The WORLD'S SHREWDEST PRIVACY NEWS LETTER The US Government Has Constructed a Ubiquitous Surveillance
State
Supreme Court Shields Warrantless Eavesdropping Law From Constitutional Challenge
The five right-wing justices hand Obama a victory by accepting his
DOJ's secrecy-based demand for dismissal
The Obama justice department succeeded in convincing the five
right-wing Supreme Court justices to dismiss a lawsuit challenging
the constitutionality of the 2008 law, the FISA Amendments Act,
which vastly expanded the government's authority to eavesdrop
on Americans without warrants. In the case of Clapper v. Amnesty
International, Justice Samuel Alito wrote the opinion, released
today, which adopted the argument of the Obama DOJ, while the
Court's four less conservative justices (Ginsberg, Breyer, Sotomayor
and Kagan) all dissented. This means that the lawsuit is dismissed
without any ruling on whether the US government's new eavesdropping
powers violate core constitutional rights. The background of this
case is vital to understanding why this is so significant.
One of the most successful government scams of the last decade has
been to prevent any legal challenges to its secret surveillance
programs. Both the Bush and Obama DOJ's have relied on one
tactic in particular to insulate its eavesdropping behavior
from judicial review: by draping what it does in total secrecy,
it prevents anyone from knowing with certainty who the targets of
its surveillance are. The DOJ then exploits this secrecy to block
any constitutional or other legal challenges to its surveillance
actions on the ground that since nobody can prove with certainty that
they have been subjected to this eavesdropping by the government,
nobody has "standing" to sue in court and obtain a ruling on the
constitutionality of this eavesdropping.
The Bush DOJ repeatedly used this tactic to prevent anyone from
challenging the legality of its eavesdropping on Americans without
the warrants required by the FISA law. That's another way of saying
that the Bush administration removed their conduct from the rule of
law: after all, if nobody has standing to obtain a court ruling on
the legality or constitutionality of their conduct, then neither the
law nor the Constitution constrain what the government does. Simply
put, a law without a remedy is worthless. As Alexander Hamilton
put it in Federalist 15:
"It is essential to the idea of a law, that it be attended with
a sanction; or, in other words, a penalty or punishment for
disobedience. If there be no penalty annexed to disobedience, the
resolutions or commands which pretend to be laws will, in fact,
amount to nothing more than advice or recommendation."
Thus did the Bush DOJ exploit their secrecy extremism into a license
of lawlessness: they never had to prove that even their most radical
actions were legal because by keeping it all a secret, they prevented
anyone from being able to obtain a ruling about its legality.
The Obama DOJ has embraced this tactic in full. In 2008, the
Democratic-led Congress (with the support of then-Sen. Barack Obama)
enacted the so-called FISA Amendments Act, which dramatically
expanded the government's warrantless eavesdropping powers beyond
what they had been for the prior 30 years. The primary intention of
that new law was to render the Bush warrantless eavesdropping program
legal, and it achieved that goal by authorizing the NSA to engage in
whole new categories of warrantless surveillance aimed at Americans.
Since its enactment, the Obama administration has been using
that massively expanded eavesdropping authority to spy on the
electronic communications of Americans without the need to obtain
specific warrants (the law simply provides that the government must
periodically obtain court approval for their general methods of
eavesdropping, but not approval for their specific eavesdropping
targets). At the end of last year, the Obama administration relied
on overwhelming GOP Congressional support to extend this law for
another five years without a single reform.
Immediately upon enactment of this new law in 2008, the ACLU filed
a lawsuit alleging that the warrantless eavesdropping powers it
vests violate the First and Fourth Amendments. The plaintiffs in
the case are US lawyers, journalists, academic researchers and human
rights activists and groups (such as Amnesty) who work on issues of
terrorism, foreign policy and human rights. They argued that they
have standing to challenge the constitutionality of the eavesdropping
law because its very existence impedes their work in numerous ways
and makes it highly likely that their communications with their
clients and sources will be targeted for interception by the NSA.
Because the Obama administration insists that it is a secret who
they target for eavesdropping, neither these plaintiffs - nor anyone
else - can prove with absolute certainty that they or their clients
have been targeted. Taking a page (as usual) from the Bush DOJ, the
Obama DOJ thus argued in response to this lawsuit that this secrecy
means that nobody has "standing" to challenge the constitutionality
of this law. With perfect Kafkaesque reasoning, the Obama DOJ says
that (1) who we spy on is a total secret, and therefore (2) nobody
has the right to obtain a judicial ruling as to whether what we
are doing is legal or constitutional.
It is true that "standing" is an important doctrine: the requirement
that a person first prove that they have been uniquely harmed
by a law they want to challenge is not only necessary to fulfill
the Constitution's limitation on the federal court's power (which
confines their authority to actual "cases or controversies"), but
it also prevents the Court from acting as a free-floating arbiter
that rules on every political question. Courts can only rule on
actual cases where one party has concretely harmed another.
The plaintiffs, however, have argued that although they cannot
prove they or their clients and sources have been targeted, they
are already being harmed by the existence of this law. They have
ample reason to fear, they say, that the communications they have
with their clients or sources are targeted for interception by
the government. That means that this law forces them to refrain
from communicating, or to expend substantial sums to travel across
the world to meet in person with them, or that these clients and
sources refuse to speak to them out of fear of being eavesdropped
on. These concrete harms mean, they say, that they have standing
to sue the government and obtain a ruling as to whether this law
is constitutional.
In 2011, the Second Circuit Court of Appeals rejected the Obama
DOJ's arguments and ruled that plaintiffs had standing to challenge
the eavesdropping law given the concrete harms they are suffering
from the mere existence of these eavesdropping powers. Rather than
defend the constitutionality of the law, the Obama DOJ appealed this
decision to the Supreme Court, and asked the court to dismiss the
suit on standing grounds, without reaching the merits of the lawsuit.
Today, the Supreme Court, by a 5-4 decision, agreed to do exactly
that. Justice Alito (joined by Scalia, Thomas, Roberts and Kennedy)
fully embraced the Kafka-like rationale of the Obama DOJ. They
rewarded the government for its extreme secrecy by using it to bar
any challenges to the law; said Alito:
"[Plaintiffs] have no actual knowledge of the Government's §1881a
targeting practices. Instead, [plaintiffs] merely speculate and
make assumptions about whether their communications with their
foreign contacts will be acquired under §1881a. . . . [Plaintiffs],
however, have set forth no specific facts demonstrating that the
communications of their foreign contacts will be targeted. Moreover,
because §1881a at most authorizes - but does not mandate or direct -
the surveillance that [plaintiffs] fear, [plaintiffs'] allegations
are necessarily conjectural. . . . Simply put, [plaintiffs] can
only speculate as to how the Attorney General and the Director of
National Intelligence will exercise their discretion in determining
which communications to target."
To call this argument ludicrous is to be generous. Every one
of the plaintiffs here have been harmed by this eavesdropping
law. In the course of their work, they have cause to communicate
regularly with people whom the US government suspects are involved
in Terrorism. When combined with the US government's technological
abilities to spy on virtually every communication anywhere in the
world, along with the government's proven propensity to eavesdrop
on everyone it deems has anything to do with a terrorist group, it
is a virtual certainty that the communications of these plaintiffs
will be targeted, as Justice Breyer explained in dissent:
"In my view, this harm is not 'speculative'. Indeed it is as likely
to take place as are most future events that commonsense inference
and ordiÂ-nary knowledge of human nature tell us will happen. . . . .
"Several considerations, based upon the record along with
commonsense inferences, convince me that there is a very high
likelihood that Government, acting under the authority of §1881a,
will intercept at least some of the communications just described
. . . . . The Government has a strong motive to conduct surveillance
of conversations that contain material of this kind. . . . [T]he
Government's past behavior shows that it has sought, and hence
will in all likelihood continue to seek, information about alleged
terrorists and detainees through means that include surveillance
of electronic communications. As just pointed out, plaintiff
Scott McKay states that the Government (under the authority of the
pre-2008 law) 'intercepted some 10,000 telephone calls and 20,000
email communications involving [his client] Mr. Al-Hussayen.'
"To some degree this capacity rests upon technology available
to the Government. See 1 D. Kris & J. Wilson, National Security
Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) ('NSA's
technological abilities are legendary'); id., §16:12, at 572-577
(describing the National Security Agency's capacity to monitor
'very broad facilities' such as internaÂ-tional switches). See,
e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials
Report, NY Times, Dec. 24, 2005, p. A1 (describing capacity to trace
and to analyze large volumes of communications into and out of the
United States)".
In sum, the US government has constructed a ubiquitous Surveillance
State. It has repeatedly demonstrated that it intends to eavesdrop
on the communications of exactly the people who have brought
this lawsuit. To prevent them from suing on the ground that the US
government's secrecy precludes them from proving with certainty that
they are being targeted is to remove the US government's surveillance
actions from the rule of law and the constraints of the Constitution.
But that is what the Obama DOJ just succeeded in convincing the
five right-wing members of the Court to do: allow it to conduct
its Surveillance State beyond the rule of law. What's the point
of having a Fourth Amendment that bars unreasonable searches and
seizures without probable cause warrants if the US government simply
shrouds its unconstitutional eavesdropping with so much secrecy that
it prevents anyone from challenging the legality of what it is doing?
The supreme irony here is that when Obama supported this 2008
eavesdropping law, it sparked intense anger among his own supporters
as he ran for president. To placate that anger, he vowed that,
once in power, he would rein in the excesses of this law that he
oh-so-reluctantly supported. He has done exactly the opposite. He
just succeeded in pressuring the Congress, with heavy GOP support,
to extend this eavesdroppiong law for five years without a single
reform. And now his Justice Department has used the five right-wing
justices to completely immunize the law from judicial review
(the only way the law could now be challenged is from a handful
of extremely unlikely situations, such as if the US government
criminally prosecutes the foreign clients and sources of these
plaintiffs using information they obtained from the warrantless
eavesdropping, and even then, the ability to challenge the law's
constitutionality is far from certain).
When the new 2008 FISA eavesdropping law was passed, all sorts of
legal scholars debated its constitutionality, but it turns out that
debate was - like the Constitution itself - completely academic. As
both the Bush and Obama administrations have repeatedly proven,
they are free to violate the Constitution at will just so long
as they do so with enough secrecy to convince subservient federal
courts to bar everyone from challenging their conduct.
The above article by Glenn Greenwald, The Guardian
Until next issue, stay cool and remain low profile!
Supreme Court Shields Warrantless Eavesdropping Law From Constitutional Challenge
The five right-wing justices hand Obama a victory by accepting his
DOJ's secrecy-based demand for dismissal
The Obama justice department succeeded in convincing the five
right-wing Supreme Court justices to dismiss a lawsuit challenging
the constitutionality of the 2008 law, the FISA Amendments Act,
which vastly expanded the government's authority to eavesdrop
on Americans without warrants. In the case of Clapper v. Amnesty
International, Justice Samuel Alito wrote the opinion, released
today, which adopted the argument of the Obama DOJ, while the
Court's four less conservative justices (Ginsberg, Breyer, Sotomayor
and Kagan) all dissented. This means that the lawsuit is dismissed
without any ruling on whether the US government's new eavesdropping
powers violate core constitutional rights. The background of this
case is vital to understanding why this is so significant.
One of the most successful government scams of the last decade has
been to prevent any legal challenges to its secret surveillance
programs. Both the Bush and Obama DOJ's have relied on one
tactic in particular to insulate its eavesdropping behavior
from judicial review: by draping what it does in total secrecy,
it prevents anyone from knowing with certainty who the targets of
its surveillance are. The DOJ then exploits this secrecy to block
any constitutional or other legal challenges to its surveillance
actions on the ground that since nobody can prove with certainty that
they have been subjected to this eavesdropping by the government,
nobody has "standing" to sue in court and obtain a ruling on the
constitutionality of this eavesdropping.
The Bush DOJ repeatedly used this tactic to prevent anyone from
challenging the legality of its eavesdropping on Americans without
the warrants required by the FISA law. That's another way of saying
that the Bush administration removed their conduct from the rule of
law: after all, if nobody has standing to obtain a court ruling on
the legality or constitutionality of their conduct, then neither the
law nor the Constitution constrain what the government does. Simply
put, a law without a remedy is worthless. As Alexander Hamilton
put it in Federalist 15:
"It is essential to the idea of a law, that it be attended with
a sanction; or, in other words, a penalty or punishment for
disobedience. If there be no penalty annexed to disobedience, the
resolutions or commands which pretend to be laws will, in fact,
amount to nothing more than advice or recommendation."
Thus did the Bush DOJ exploit their secrecy extremism into a license
of lawlessness: they never had to prove that even their most radical
actions were legal because by keeping it all a secret, they prevented
anyone from being able to obtain a ruling about its legality.
The Obama DOJ has embraced this tactic in full. In 2008, the
Democratic-led Congress (with the support of then-Sen. Barack Obama)
enacted the so-called FISA Amendments Act, which dramatically
expanded the government's warrantless eavesdropping powers beyond
what they had been for the prior 30 years. The primary intention of
that new law was to render the Bush warrantless eavesdropping program
legal, and it achieved that goal by authorizing the NSA to engage in
whole new categories of warrantless surveillance aimed at Americans.
Since its enactment, the Obama administration has been using
that massively expanded eavesdropping authority to spy on the
electronic communications of Americans without the need to obtain
specific warrants (the law simply provides that the government must
periodically obtain court approval for their general methods of
eavesdropping, but not approval for their specific eavesdropping
targets). At the end of last year, the Obama administration relied
on overwhelming GOP Congressional support to extend this law for
another five years without a single reform.
Immediately upon enactment of this new law in 2008, the ACLU filed
a lawsuit alleging that the warrantless eavesdropping powers it
vests violate the First and Fourth Amendments. The plaintiffs in
the case are US lawyers, journalists, academic researchers and human
rights activists and groups (such as Amnesty) who work on issues of
terrorism, foreign policy and human rights. They argued that they
have standing to challenge the constitutionality of the eavesdropping
law because its very existence impedes their work in numerous ways
and makes it highly likely that their communications with their
clients and sources will be targeted for interception by the NSA.
Because the Obama administration insists that it is a secret who
they target for eavesdropping, neither these plaintiffs - nor anyone
else - can prove with absolute certainty that they or their clients
have been targeted. Taking a page (as usual) from the Bush DOJ, the
Obama DOJ thus argued in response to this lawsuit that this secrecy
means that nobody has "standing" to challenge the constitutionality
of this law. With perfect Kafkaesque reasoning, the Obama DOJ says
that (1) who we spy on is a total secret, and therefore (2) nobody
has the right to obtain a judicial ruling as to whether what we
are doing is legal or constitutional.
It is true that "standing" is an important doctrine: the requirement
that a person first prove that they have been uniquely harmed
by a law they want to challenge is not only necessary to fulfill
the Constitution's limitation on the federal court's power (which
confines their authority to actual "cases or controversies"), but
it also prevents the Court from acting as a free-floating arbiter
that rules on every political question. Courts can only rule on
actual cases where one party has concretely harmed another.
The plaintiffs, however, have argued that although they cannot
prove they or their clients and sources have been targeted, they
are already being harmed by the existence of this law. They have
ample reason to fear, they say, that the communications they have
with their clients or sources are targeted for interception by
the government. That means that this law forces them to refrain
from communicating, or to expend substantial sums to travel across
the world to meet in person with them, or that these clients and
sources refuse to speak to them out of fear of being eavesdropped
on. These concrete harms mean, they say, that they have standing
to sue the government and obtain a ruling as to whether this law
is constitutional.
In 2011, the Second Circuit Court of Appeals rejected the Obama
DOJ's arguments and ruled that plaintiffs had standing to challenge
the eavesdropping law given the concrete harms they are suffering
from the mere existence of these eavesdropping powers. Rather than
defend the constitutionality of the law, the Obama DOJ appealed this
decision to the Supreme Court, and asked the court to dismiss the
suit on standing grounds, without reaching the merits of the lawsuit.
Today, the Supreme Court, by a 5-4 decision, agreed to do exactly
that. Justice Alito (joined by Scalia, Thomas, Roberts and Kennedy)
fully embraced the Kafka-like rationale of the Obama DOJ. They
rewarded the government for its extreme secrecy by using it to bar
any challenges to the law; said Alito:
"[Plaintiffs] have no actual knowledge of the Government's §1881a
targeting practices. Instead, [plaintiffs] merely speculate and
make assumptions about whether their communications with their
foreign contacts will be acquired under §1881a. . . . [Plaintiffs],
however, have set forth no specific facts demonstrating that the
communications of their foreign contacts will be targeted. Moreover,
because §1881a at most authorizes - but does not mandate or direct -
the surveillance that [plaintiffs] fear, [plaintiffs'] allegations
are necessarily conjectural. . . . Simply put, [plaintiffs] can
only speculate as to how the Attorney General and the Director of
National Intelligence will exercise their discretion in determining
which communications to target."
To call this argument ludicrous is to be generous. Every one
of the plaintiffs here have been harmed by this eavesdropping
law. In the course of their work, they have cause to communicate
regularly with people whom the US government suspects are involved
in Terrorism. When combined with the US government's technological
abilities to spy on virtually every communication anywhere in the
world, along with the government's proven propensity to eavesdrop
on everyone it deems has anything to do with a terrorist group, it
is a virtual certainty that the communications of these plaintiffs
will be targeted, as Justice Breyer explained in dissent:
"In my view, this harm is not 'speculative'. Indeed it is as likely
to take place as are most future events that commonsense inference
and ordiÂ-nary knowledge of human nature tell us will happen. . . . .
"Several considerations, based upon the record along with
commonsense inferences, convince me that there is a very high
likelihood that Government, acting under the authority of §1881a,
will intercept at least some of the communications just described
. . . . . The Government has a strong motive to conduct surveillance
of conversations that contain material of this kind. . . . [T]he
Government's past behavior shows that it has sought, and hence
will in all likelihood continue to seek, information about alleged
terrorists and detainees through means that include surveillance
of electronic communications. As just pointed out, plaintiff
Scott McKay states that the Government (under the authority of the
pre-2008 law) 'intercepted some 10,000 telephone calls and 20,000
email communications involving [his client] Mr. Al-Hussayen.'
"To some degree this capacity rests upon technology available
to the Government. See 1 D. Kris & J. Wilson, National Security
Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) ('NSA's
technological abilities are legendary'); id., §16:12, at 572-577
(describing the National Security Agency's capacity to monitor
'very broad facilities' such as internaÂ-tional switches). See,
e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials
Report, NY Times, Dec. 24, 2005, p. A1 (describing capacity to trace
and to analyze large volumes of communications into and out of the
United States)".
In sum, the US government has constructed a ubiquitous Surveillance
State. It has repeatedly demonstrated that it intends to eavesdrop
on the communications of exactly the people who have brought
this lawsuit. To prevent them from suing on the ground that the US
government's secrecy precludes them from proving with certainty that
they are being targeted is to remove the US government's surveillance
actions from the rule of law and the constraints of the Constitution.
But that is what the Obama DOJ just succeeded in convincing the
five right-wing members of the Court to do: allow it to conduct
its Surveillance State beyond the rule of law. What's the point
of having a Fourth Amendment that bars unreasonable searches and
seizures without probable cause warrants if the US government simply
shrouds its unconstitutional eavesdropping with so much secrecy that
it prevents anyone from challenging the legality of what it is doing?
The supreme irony here is that when Obama supported this 2008
eavesdropping law, it sparked intense anger among his own supporters
as he ran for president. To placate that anger, he vowed that,
once in power, he would rein in the excesses of this law that he
oh-so-reluctantly supported. He has done exactly the opposite. He
just succeeded in pressuring the Congress, with heavy GOP support,
to extend this eavesdroppiong law for five years without a single
reform. And now his Justice Department has used the five right-wing
justices to completely immunize the law from judicial review
(the only way the law could now be challenged is from a handful
of extremely unlikely situations, such as if the US government
criminally prosecutes the foreign clients and sources of these
plaintiffs using information they obtained from the warrantless
eavesdropping, and even then, the ability to challenge the law's
constitutionality is far from certain).
When the new 2008 FISA eavesdropping law was passed, all sorts of
legal scholars debated its constitutionality, but it turns out that
debate was - like the Constitution itself - completely academic. As
both the Bush and Obama administrations have repeatedly proven,
they are free to violate the Constitution at will just so long
as they do so with enough secrecy to convince subservient federal
courts to bar everyone from challenging their conduct.
The above article by Glenn Greenwald, The Guardian
Until next issue, stay cool and remain low profile!
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