The Presidency and Precedents

What hath Obama wrought?

Conor Friedersdorf:

Despite all these instances of the U.S. accusing innocent people of crimes against America, sometimes torturing them and imprisoning them for years on end, President Obama is sufficiently confident in federal officials, including the CIA -- one of the least accountable, least transparent branches of government, and one with a less than perfect record getting accurate intelligence -- that he regards it as good, prudent policy to pronounce death sentences upon American citizens, in clear violation of the 5th Amendment, without even a safeguard as basic as a classified trial in absentia and a judge to do due diligence on the alleged evidence. And this extraordinary power, with its obvious potential for catastrophic abuses, is vested in one man who'll leave office in one or five years, to be replaced by an as yet undetermined politician -- perhaps Rick Perry, who presided over Texas when it executed the likely innocent Cameron Todd Willingham, despite a trial with forensic testimony and a years long appeal process.

President Obama has perhaps forever changed the relationship between the United States government and its citizens, setting a precedent as damaging as anything a modern president has done, and the appropriate reaction, whatever one's partisan or ideological orientation, is shock and anger at his hubris and imprudence. Depending on the GOP nominee in 2012, I may well decide that I can't vote for him or her in good conscience. But today, as Obama celebrates the extra-legal assassination of an American, and sets the precedent that the president can kill citizens without due process if he or she pronounces them a terrorist, I know that I cannot in good conscience cast a vote to re-elect him. If you're even a little bit of a civil libertarian, and this didn't cost Obama your vote, I'd ask you to ponder this question: What transgression would?

Buffalo Soldiers

Not a very nice thing from the Cherokee Nation:

TULSA, Okla. — One of the nation’s largest American Indian tribes has sent letters to about 2,800 descendants of slaves once owned by its members, revoking their citizenship and cutting their medical care, food stipends, low-income homeowners’ assistance and other services.

The Cherokee Nation acted this week after its Supreme Court upheld the results of a 2007 special vote to amend the Cherokee constitution and remove the slaves’ descendants and other non-Indians from tribal rolls. The 300,000-member tribe is the biggest in Oklahoma, although many of its members live elsewhere.

Certainly, I understand that they have economic issues the same as anyone else but revoking the citizenship of people who have held it for generations? Since the end of the Civil War? Surely, there are better ways to balance a budget.

Chart of the Day

Quite the shocker.

Here's a look at the uses of delayed-notice search warrants issued under the expanded powers of the Patriot Act circa 2006-2009:

Via Radley Balko.

Change

Glenn Greenwald takes a look at a devastating report from the ACLU on civil liberties during the Obama administration. What are we looking at here? It is not hyperbolic to call it W's third term:

But the primary cause of this Bush-Obama continuity is the vigorous embrace by both Presidents of the same theory of war and Terrorism -- the unlimited global battlefield and the President's resulting unconstrained power to act anywhere in the world without limits -- which was once so controversial during the Bush presidency but has now become mainstream, bipartisan consensus.

Which explains quite nicely Obama's assertion that as the executive, he can target an American citizen for execution, far from any battlefield with a complete lack of Congressional or judicial oversight.

Power corrupts:

Either way, this creeping unchecked authoritarianism marches forward unabated, and is now -- rather than the province of the right-wing GOP -- fully bipartisan consensus.  I really don't understand how progressives think they'll be taken seriously the next time there is a GOP President and they try to resurrect their feigned concern for these matters; they'll be every bit as credible as conservatives who pretend to be deficit-warriors and defenders of restrained government only when the other party is in power.  

But even that ultimately matters little: so entrenched is this institutional militarism, secrecy, surveillance and authoritarianism that even if there were greater public debate over it like there was during the Bush presidency, this system would hardly be affected, let alone threatened.  Governments and other power factions -- especially ones threatened by the prospect of social unrest and upheaval -- do not relinquish this sort of authority unless compelled to do so.

Shopping...FOR TERROR!!!!

Delightful news from the security state: Shopping at Mall of America can now land you on counter-terrorism watch lists:

On Nov. 9, 2008, the Bloomington resident videotaped a short road trip from his home to the Mall of America. Van Asten, now 66, planned to send it to his fiancée's family in Vietnam so they could see life in the United States.

As he headed down an escalator, camera in hand, mall guards caught sight of him.

"Right away, I noticed he had a video camera and was recording the rotunda area," a security guard wrote in a suspicious activity report.

Van Asten, a one-time missile system repairman for the Army, was questioned for approximately two hours, records show. He was asked about traveling to Vietnam and how he came to know people there. The FBI Joint Terrorism Task Force was alerted. He was given a pat-down search, and the FBI demanded that his memory card be confiscated "for further analysis."

Authorities were concerned about his footage of an airplane landing at Minnesota's nearby international airport. They also worried Van Asten was conducting surveillance of mall property.

Exhausted and rattled, Van Asten had trouble finding his car after the ordeal was over.

"I sat down in my car and I cried, and I was shaking like a leaf," Van Asten said in an interview at his home. "That kind of sensation doesn't leave you real quickly when you've had an experience like that."

No news as to what Homeland Security is doing about these clear and present dangers.

A Simple Rule for Law Enforcement

Presenting the HOLY SHIT!!!!! Rule:

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

Please bear in mind, that had this rule been better followed by law enforcement, Steven Seagal would not have been allowed to use a fucking tank to stop a cock fight.

Cops on Camera

Coming via Radley Balko's excellent The Agitator (your one stop shop for questionable police behavior), are a couple of excellent videos showing very divergent reactions by police to being filmed.

It's a bit of good cop/bad cop. We'll start with the bad cop first, just to give a good example of how law enforcement officers SHOULD NOT REACT to being filmed performing their public duties within a public area.



Nothing quite like ending a march against violence by putting a TV news cameraman in a choke hold is there, ladies and gentleman?

Following this, it's very important to stress that there are obviously many, many police officers out there who are the very image of professionalism.

The differences between the following video and the proceeding one are vast. In this case, the officer is in fact encountering an objectively dangerous weapon:



For the record, a Smith and Wesson .40 is substantially more dangerous than a video camera. However, this officer didn't even feel the need to raise his voice, let alone assault anyone. He identified a possible problem and treated it in a way one would hope (let's hope for unicorns while we're at it!), all officers would. Regardless of your feelings about open carry laws (for the record: I'm permitted to carry concealed and choose to do so precisely to avoid these sorts of conversations), the level of professionalism shown by this officer is undeniably admirable.

Back to the Future

Conor Friedersdorf reports on a bit of political deja vue:

In Barack Obama's rise to national prominence, when he criticized the Bush Administration for its false claims about WMDs in Iraq, its torture of detainees, and its illegal program of spying on American citizens without warrants, he owed a particular debt of gratitude to a New York Times national security reporter. In a series of scoops as impressive as any amassed during the War on Terrorism, James Risen reported in 2004 that the CIA failed to tell President Bush about relatives of Iraqi scientists who swore that the country had abandoned its weapons program; the same year, he was first to reveal that the CIA was waterboarding detainees in Iraq; and in 2005, he broke the Pulitzer Prize winning story about the secret NSA spying program.

These scoops so embarrassed and angered the Bush Administration that some of its senior members wanted Risen to end up in jail. They never managed to make that happen. But President Obama might. He once found obvious value in Risen's investigative journalism. Its work that would've been impossible to produce without confidential sources and an ability to credibly promise that he'd never reveal their identities. But no matter. The Obama Administration is now demanding that Risen reveal his source for a 2006 scoop about CIA missteps in Iran. If he refuses to cooperate, which is his plan, he faces the possibility of jail time.

Somewhere, Dick Cheney is smiling.

Scenes From Our Drug War

Radley Balko looks at a totally justifiable use of a SWAT team:

So I guess it’s settled, then. Clearly this 69-year-old man who at worst was selling prescription painkillers (and again, we don’t yet have any evidence of that, other than an alleged tip from an informant, who will likely never be identified) knowingly, intentionally took on a team of raiding cops while armed only with a handgun. No need to question the tactics, here. No need to ask if it was really the smartest idea for armed cops to force their way into the home of a sick elderly man with poor vision to serve a search warrant for evidence of nonviolent crimes. No need to ask any further questions at all, really. Just put your faith in Chief Jordan and the integrity of his department’s not-at-all-predetermined investigation.

Update

Quick update on the SWAT raid over unpaid student loans here.

Looks like you may be able to default on your loans and not get shot by the police after all.

This is apt though:

Unless and until we hear that this "criminal investigation" involves some kind of imminent threat of violence, there will be no margin of excuse for it, only new opportunities for bureaucrats and commentators to demonstrate that they are perfectly content living in and even contributing to a police state.

Taking a Break

"We're here about your credit rating!"

Hey, taking a break today from my regularly scheduled posting.

So as not to leave you with with nothing, I'd like to throw out one quick link though: FOR THE LOVE OF GOD, PAY YOUR STUDENT LOANS!

For the majority of you who probably didn't bother following that link, allow me to quickly summarize:

A man with no criminal record and three small children at home at the time was roused from his bed, thrown onto the ground and handcuffed during a SWAT raid in search of what now? His estranged wife who had defaulted on her student loans. Unbelievably, the Department of Education is empowered to issue search warrants and call in SWAT teams for this kind of thing.

Just incredible.

A Growth Industry We Don't Need

Business is booming:

America has one-quarter of the world’s prisoners. More than 7 million people are under correctional supervision in this country. These staggering statistics—no other country comes close in percentage terms, let alone raw numbers—have serious consequences. For one thing, there is the fiscal cost: The corrections system lags only Medicaid in government spending growth on the state level. Yet most prisons are overcrowded, underserviced, and exponentially more dangerous than any decent society should tolerate.

Our Own Worst Enemy

Looking at a post by Lexington concerning the decline of Fourth Amendment protections in this country as a result of the war on terror, war on drugs or war on (insert cause name here) this leaps out:

Part of the damage is done by the habit of police everywhere to cut corners and stretch their prerogatives. But the Supreme Court has played a part, too. To take just one of Mr Shipler’s examples, the police must still usually show “probable cause” if they want a warrant to search a house. But for street encounters in which there is even the slightest possibility of danger to life, the court has over time substituted the woollier “reasonable grounds” or “reasonable suspicion”, thereby giving officers on the beat a latitude they are delighted to exploit. Most street pat-downs are never recorded, scrutinised by a prosecutor, challenged by a lawyer or adjudicated by a judge. Yet, says Mr Shipler, they weaken the fourth amendment and poison life on the street in a thousand poor neighbourhoods in America.

Emphasis mine.

What's terrible is that in just a week or so since this was published, the idea that police must show probable cause to enter your home has become sadly quaint.

Consider this ruling from the Indiana Supreme Court that citizens have no right to resist police officers that are entering their homes illegally:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

It's quite fair to say, as the article does, that this is a reversal of common law dating back to the Magna Carta.

Unfortunately, this isn't limited to the states. In an 8-1 decision, the Supreme Court recently ruled that police can kick in your door if they hear sounds suggesting you might be destroying evidence:

It began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Anyone else think that police are going to start smelling pot an awful lot more frequently? 

Takei-ing up the Internet

Noted takei; George Takei, has gone to new depths in his efforts to takei up the internet and ruin it for the non-takei of us.

Bullshit.

Bullshit.
Bullshit.
Bullshit.
Bullshit.
Bullshit!!!

I was planning on working on a longer post today about the erosion of 4th Amendment protections anyways. I'll be getting to it shortly.

Reality Check

Along with everyone else in the civilized world, I engaged in much needed (and I believe appropriate), celebrations regarding the death of Bin Laden.

Because let's face it: If anyone needed a killing, it was him.

That said, the success of the killing (both operationally and politically), provided the administration with the necessary excuse to launch another assassination attempt over the past few days. This time against (noted bad guy but unarguably...), American citizen Anwar al-Awlaki. Glenn Greenwald provides some necessary rain on the national parade:

There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance.  But the notion that the President has the power to order American citizens assassinated without an iota of due process -- far from any battlefield, not during combat -- is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it's hard to convey in words or treat with civility.

How do you even engage someone in rational discussion who is willing to assume that their fellow citizen is guilty of being a Terrorist without seeing evidence for it, without having that evidence tested, without giving that citizen a chance to defend himself -- all because the President declares it to be so?  "I know Awlaki, my fellow citizen, is a Terrorist and he deserves to die.  Why?  Because the President decreed that, and that's good enough for me.  Trials are so pre-9/11."  If someone is willing to dutifully click their heels and spout definitively authoritarian anthems like that, imagine how impervious to reason they are on these issues.

And if someone is willing to vest in the President the power to assassinate American citizens without a trial far from any battlefield -- if someone believes that the President has that power:  the power of unilaterally imposing the death penalty and literally acting as judge, jury and executioner -- what possible limits would they ever impose on the President's power?  There cannot be any.  Or if someone is willing to declare a citizen to be a "traitor" and demand they be treated as such -- even though the Constitution expressly assigns the power to declare treason to the Judicial Branch and requires what we call "a trial" with stringent evidence requirements before someone is guilty of treason -- how can any appeals to law or the Constitution be made to a person who obviously believes in neither?

Your Tax Dollars at Work

The Guardian UK features an interview with a de-facto Englishman who is absolutely unhappy about that inconvenient fact.

Regardless of your position on immigration, I think it's important to consider the incredible expenses that must have been involved in deporting this man who was clearly, ruining the economy by stealing American DJing jobs.

Then we drove through LA to pick up others. When I saw people crying and kissing their families goodbye, it started to click that something serious was happening. I was put in a room with 75 men and six hours later handed a letter with a check box that read: deported for 10 years. I wasn't allowed to see a lawyer. I was driven to the airport and flown to a detention centre in New Mexico. The plane was pitch dark and my arms and legs were handcuffed. I wet myself trying to get to the toilet.

Otero County processing centre is a huge warehouse in the desert. I was shown my room: a 50-man dorm, with bunk beds lined along each wall, a security guard in one corner and five exposed toilets and showers in another. There were no windows, just the buzz of halogen lights and the sound of men from various different countries shouting, fighting and playing dominoes. Although I didn't know it at the time, this would be my home for the next three months.

Ramping up the Stupid

I'm certainly no fan of the TSA. I consider their security practices to be invasive, unconstitutional and humiliating. That said, I've always had a relatively easy time getting through security. Let's face it, we live in a country where that's unfortunately, one of the perks of being a white guy.

These two men were not as fortunate.

Let's review: These men were compelled to go through security not once, not twice but ultimately thrice after they were removed from the plane. After their third security check the pilot still refused to carry them and flew off with them still on the ground.

The reasoning? Funny clothes, 'natch.

Guilt by Association

Today's New York Times features a rather staggering profile of "economist" Gary North. Mr. North is a proponent of what's known as "biblical economics". Through some sort of magical transfusion, he is described as a libertarian.

And as noted atheist and godmother of libertarianism, Ayn Rand spins in her grave howling, let's take a moment to look this piece over (I suspect her ghost hasn't been this displeased since reviews of "Atlas Shrugged" started coming in).

Granted, his economic positions are broadly libertarian in that they argue that services and responsibilities fulfilled by the state should instead be devolved to the individual. Most libertarian intellectuals would probably reach the same conclusions having read Mises, Hayek, Friedman et al. while he came to them after perusing the mystical writings of a nomadic, desert tribe but that's neither here nor there. The conclusions are basically the same though Mr. North arrived at his via...different means.

But then...

These “Reconstructionists” are believers in Christian Reconstructionism, the philosophy of R. J. Rushdoony, who died in 2001. According to Reconstructionism, a Christian theocracy under Old Testament law is the best form of government, and a radically libertarian one. Biblical law, they believe, presupposes total government decentralization, with the family and church providing order. Until that day comes, Reconstructionists believe the rights to home-school and to worship freely at least provide the barest conditions of liberty. 

Emphasis mine.

Let's be clear: One can share libertarian ideals and not be a libertarian. Everyone has a different 'acid test' for what that might be. I would say however, that advocating for an OLD TESTAMENT THEOCRACY would be a bit beyond the pale for anyone devoted to the principles of economic and civil liberty! The Old Testament hardly has a live-and-let-live worldview.

Truth, Justice and the (Insert Country Name Here) Way

Bit of Sue Bait here.

Well, this is certainly interesting...

I see that Superman has renounced his American citizenship. Conservatives react here.

Not to ruin the story (SPOILER ALERT), but his reasoning is fairly valid. He wished to go to Tehran to support the protesters. The Iranian government said that they would view this as an act of war by the United States. He felt constrained by being seen as an instrument of American foreign policy and well...Now he's a citizen of somewhere or another.

Or not. Who knows?

What's interesting of course is that this raises a bevy of questions for his poor, hard-working alter ego; Clark Kent. Undoubtedly, Super Man (even given his now stateless existence), has always wished to follow the laws of the land. This becomes difficult when one considers that he is the ultimate undocumented worker. While it's possible that his father Jor-El had the presence of mind to fill out the proper forms before shooting his baby at Earth strapped to a rocket, I would suspect that with his home planet exploding and everything, he probably had other things on his mind.

Superman may have had at least felt morally justified working in the country. After all, he came here as a small child and certainly had no say over the matter. Furthermore, he's quite certainly been a productive member of his adopted country, even if he never did get around to tackling the troubling matter of producing a birth certificate. I can imagine he must have felt that he was as American as anyone else (definitely as much as the student mentioned in this edition of the Morning Blog. ). But having renounced his citizenship, what now? In all good conscience, will he be able to continue laboring on as Clark Kent? Will he be able to justify his continued theft of American jobs from our troubled journalism industry?

One thing I'm certain of: Given that it will be a trifle difficult to retrieve any documents or records from Krypton (planet ending explosions make record keeping just dreadful), I can't imagine that he'll go through the herculean task of applying to become a legal worker in the United States, an effort that in even the best of circumstances, can take years to complete. Frankly, that's the sort of struggle even the Man of Steel can't be expected to undertake. Far easier, to go punch a comet that's hurtling towards the Earth.