Faking Congressional Control to Fool the Public

I like Judge Napolitano but sometimes he writes things in reverse ( an amusing habit of his. Go read a few of his columns and you will see what I mean.) . Here is what he wrote. Please read it.

But here is the order that I wish he had written some paragraphs:

In our post 9/11 world, the government has gotten away with hiding its worst behavior behind a veil of secrecy, publicly justified by the fears of a loss of safety that it has instilled in the public. That is not condoned by the Constitution. Under the Constitution, a free people are always entitled to know what the government is doing, and we are entitled to a government that obeys the laws it enforces against the rest of us so we can replace the government when it fails to protect our freedoms.

In a democracy, the government must be accountable to the people it serves. Secrecy and accountability are enemies. The natural right to know what the government is doing means that secrecy must be severely and aggressively minimized. A Congress that rubber-stamps what secret agents want it to do by a secret procedure is a dangerous mix that will impair personal liberty in a free society.

The power of these (intelligence) committees effectively has established them as mini-Congresses that are unrecognized by the Constitution and are well outside its confines. The Constitution provides that “all legislative powers” are granted to Congress, not to a select few in Congress, but to Congress as a whole.

These are the same committees that have given permission to the National Security Agency (NSA) to spy on all Americans all the time, so we are probably justified in concluding that the committees and the intelligence agencies they supposedly regulate are more attuned to governmental power than to personal liberty.

Over the years, as sometimes happens between regulators (the congressional committees) and the entity to be regulated (the CIA), they developed a chummy relationship. In this case, the relationship has been so chummy that at the behest of Presidents Bush and Obama the CIA has gone to the Senate and House Intelligence committees, instead of going to the full Congress, for permission to torture prisoners, kill Americans with drones and fight small-scale wars — all well beyond the statutory mission of stealing secrets.

When the CIA was established in 1947, Congress and President Truman were concerned that it might not confine itself to spying. Its sole statutory purpose was to steal secrets from foreign governments so that the U.S. would know what they were planning and could prepare for any behavior adverse to American government interests. By its nature, it was operating in secret, and because it lacked transparency, it lacked accountability. One of the statutory mechanisms to achieve accountability was to require the CIA to report to two committees of Congress, but in secret.

The government is caught up in another scandal in which federal agents have been accused of hacking into one another’s computers.

This is more than a schoolyard brawl. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled. Either way, this is a violation of the Fourth Amendment’s prohibition of warrantless searches and seizures. Any other persons who did this would be indicted for hacking. Because all of this is so secret, we don’t know whether the Department of Justice is looking into who broke what laws.

But we do know that like its cousin the NSA, the CIA often acts above the law. It does so knowing that indictments for torturing, destroying evidence or computer hacking are unlikely, as any trial would expose the depths of this skullduggery, the unconstitutional system of mini-Congresses and the secrets these employees are trying to keep from their employers — the American people.

It is obvious to me that the ruse is to create the appearance of oversight while actually rubber stamping the programs that take away our liberties and rights. Who will change the American government and align it with the Constitution again?

My Reasonable Expectation of Privacy

Constitution Daily had an article that said this:

It actually was a then-new form of technology that both Justices Harlan and Black were dealing with in that 1967 case: Katz v. United States.  The FBI had developed the capacity to install, surreptitiously, a listening device on a public telephone booth, and a suspect who used that booth to place illegal bets – Charles Katz — argued that he had closed the door of the booth behind him, and thus expected to shut out the world when he telephoned.

The Supreme Court agreed (with only Justice Black dissenting), and declared that the Fourth Amendment “protects people, not places.”  From that time until now, the court has relied upon Justice Harlan’s formula about privacy expectations and society’s acceptance (or failure to accept) those expectations as it continues to interpret the Fourth Amendment.

In a 1979 case – the one that Judge Leon, in the quotation above, was discussing — the court ruled that society did not accept as a reasonable form of privacy the records that a telephone company keeps of calls that its customers make  The customers, it decided, voluntarily gave up to the telephone company the information about whom they called.  So, the court said, the police could use that data to track down suspected criminal Michael Lee Smith..

The Supreme Court statement that said the Fourth Amendment “protects people, not places” is asinine on the face of it. Can one separate the person from the place when talking about unreasonable searches and seizures? There is a linkage between the two whether the Supreme Court believes it or not.

People have the right to be anonymous in public places as assuredly as the government has a right to protect its secrets in public committee hearings. To deny the former while embracing the latter is hypocritical and condescending.

My expectations of privacy are:

1. My communication is not monitored, stored, reviewed, nor analyzed by any government person or tool unless one of three conditions are occurring: a) I am conducting my business with the government or its agencies and there is a need to corroborate or give credence to my assertions of fact, b) someone I may know is under investigation and I am a “friend of a friend”. If so, then a fuller and broader review of my actions/knowledge is warranted, c) I am under investigation myself for my actions.

In the first instance, my permission is required, in the second the government’s review cannot exceed 30 days without obtaining a warrant and the third instance always requires a warrant.

In the first instance, information retrieved that is outside the nature of my business is to be destroyed (and unrecoverable by others) within 30 days. In the second, at the end of a 30-day review, all information is destroyed unless a warrant has been issued to investigate me for crimes. In the third instance,  information gleaned that is not presented at trial, or is not directly related to the investigation, is destroyed within two years and is unrecoverable by others.

My expectations for personal privacy include the monitoring cameras in public places like highways, streets, public venues, and business security cameras for open-to-the-public events.I should not be identified and my movements not traced unless as part of an active criminal investigation with John Doe warrants issued. Unless they are registered as part of an active investigation, original videos (and copies of same) of any public place should be destroyed within one year of their creation.

These are reasonable expectations of privacy. I am the person the Fourth Amendment was referring to. Not my home, my car, or my telephone booth. Any place that I am, so is the Fourth Amendment. It is like a force field that repels government intrusion of me, what I am doing, and where I am going. It covers my interactions with the world from telephones and internet usage as well as conversations at the local bakery.

No one really cares if it’s apathy or not….

Sadly, no one in the national media is beating the drum of personal privacy. Why is that?

Do we think that we are so small that our government would never oppress us? Or do we think that our government is so large that we cannot effect change? Or are we simply apathetic on the whole issue?

Is the problem that we have lost the ability to argue a point without a series of examples as supporting evidence?

Evil prospers when good men do nothing. If we wish to regain personal privacy, we must do something. What shall we do today?



2013 Best Story: The Press vs the Government

A young man obtains thousands of top-secret files that details how his government is spying on everyone. He turns over the documents to researchers and investigative reporters who support the US Constitution and the Fourth Amendment.

One of the investigative journalists (Glenn Greenwald)  lives in Brazil with his male friend and is famous throughout the world for his exposes on the collection, evaluation, and use of citizen information by the US government. When corporate America and the US government combine to spy on every citizen in the US and most of the world, Glenn Greenwald finds himself the center of attention. Working for The Guardian, Greenwald details how the US government seeks the cooperation of its allies to prevent the leaker (Edward Snowden)  from obtaining asylum. The US government has apparently taken the position that the secrets it has about you and/or foreign governments is not to be shared with others.

I have always been told that the most important secrets are not the ones about us but the ones about everyone else. There is no secret more valuable than knowing someone’s secret. It is like a wild card in poker that you can use however you want and whenever you want.

Glenn Greenwald’s partner (David Miranda) was returning to Brazil when:

In August 2013, while travelling back to Brazil from Germany, Miranda was detained by the Metropolitan Police Service at London’s Heathrow Airport under Schedule 7 of the Terrorism Act 2000.[61][62] Miranda was detained for nine hours, the maximum time permissible under Schedule 7.[62] Miranda was returning from Berlin, where he had been assisting Laura Poitras, Greenwald’s collaborator on the Snowden files.[62] His flights were paid for by The Guardian, for whom Miranda does not work, but sometimes assists Greenwald on stories. Greenwald described his partner’s detention as “clearly intended to send a message of intimidation to those of us who have been reporting on the NSA and GCHQ”.[62]

The UK Espionage Act is very unforgiving when it comes to the disclosure of secret information. Greenwald believes that only the intervention of the Brazilian government prevented David Miranda from being arrested. ( I wonder how that occurred.)

The American Espionage Act of 1917 “which makes it a crime for an unauthorized person to receive national defense information or transmit it to others” and other legislation was examined in 2006 in this document. This paper was sparked by Attorney General Alberto Gonzales comments when he appeared in May 2006 on ABC’s This Week and made comments that appear to imply that Freedom of the Press does not extend to journalists revealing those things considered secret by the federal government.

The legal opinions are somewhat uncertain about whether existing statutory law is sufficient to prosecute newspapers for publishing defense information as the New York Times and the Washington Post have done in the past . But here is the muddle, an American living in Brazil that writes for a UK newspaper and is not giving secrets to the enemy, is likely not in violation of the US Espionage Act. Yet the mere act of flying through the country as the friend of Glenn Greenwald caused Britain to interrogate Miranda for almost 9 hours AND to confiscate all his electronic devices. Obviously, spy trade craft will be used to learn the encrypted secrets of those items.

This is the best story of the year and other media are slow to get on this. Instead they like to talk about the President’s golf swing.

Keep an eye and an ear out for the international intrigue surrounding this expose of government shenanigans as it tries to keep secret what it took from you contrary to the Fourth Amendment.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Easy to see that the US government does not support this Amendment.

Federal Gov’t: Thy name is Oppression!

This is the face of Oppression before Tyranny:

Two major encrypted email providers have shut down in recent days rather than cooperate with federal investigators, including the service used by NSA intelligence leaker Edward Snowden. The two services, Lavabit — the client Snowden used — and Silent Mail both posted notices on their websites explaining they will shut down their services shortly.

The owner of Lavabit, Ladar Levison, insinuated in his post Thursday that his site had become the target of a federal investigation and that he personally was subject to a gag order as a result, Forbes reports. Rather than becoming “complicit in crimes against the American people”, Levison had decided to shutter his nearly ten-year-old business and fight the investigation in court. Levison finished his post by bluntly warning anyone from storing data in the United States.

Silent Mail’s creators decided to end their encrpyted email service on Friday in conjunction with Levison, bluntly announcing that they had “preemptively discontinued the service to prevent spying.”

I am fairly certain that most have not encountered the strong arm use of Power over others. This is an example how the use of Power can be a deterrent to a legal activity. Note that this is not an abuse of Power. Abuse signifies a rational limit or a statutory limit was exceeded. This was simply the use of Power to make things difficult for the operator to continue performing a legal act. Money and the cost of a defense is often used to ‘influence’ others into a different course of action as it did in this instance.

“We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now,” wrote Jon Callas, co-founder and CTO of privacy-focused software called Silent Circle in a Friday blog post. “We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.”

The company did not announce any plans to shut down any of their other encrypted applications, including video chat and document sharing programs.

Silent Mail goes dark on Monday.

Update on Justin Carter July 8 2013

Grisly new details emerged in the story of the ongoing imprisonment of Justin Carter, who racked up months in jail for making sarcastic, violent threats after playing an online video game.

Carter has been beaten up multiple times while in jail in Comal County, Texas, according to NPR. He is now on suicide watch.

“This was his first incarceration, his first charge, and without getting into the really nasty details, he has had concussions, he has had black eyes,” said Jack Carter, Justin’s father, in a statement.

Carter also said his son has become depressed about his situation, has spent time in solitary confinement and has been moved out of fear that he might hurt himself.

Justin Carter was arrested last February for making a sarcastic, threatening remark against a school after being provoked by another player in League of Legends, an online video game. Carter followed his remark with “lol” and “jk,” signalling that it was not a serious threat. Nevertheless, Texas authorities have charged him with making threats of a terrorist nature, and set his bail at $500,000.

Carter’s lawyer, Don Flanary, was shocked by the high bail amount.

“I’ve represented murderers terrorists, rapists, anything you can think of,” said Flanary in a statement. “I’ve never seen a bond at $500,000.”

A spokesperson for Comal County told The Daily Caller News Foundation that Carter’s bail was set by a judge, but couldn’t say why the amount was so high. A large bail typically indicates that the suspect is extremely dangerous, or a substantial flight risk.

Rep. Sean Duffy Speaks about Privacy

Ok, I like him personally even though I ran against him in 2012. We don’t always disagree but we rarely agree completely. (BTW,  I ran against him but I was not in any way “opposition”. Maybe next time.)

In this instance, we agree more than we disagree so please allow me to show you his video.

(I am beginning to hate the phrase “We must find a balance…”  I don’t think we need to find a balance between surveilling every American or capturing terrorists.We just need to capture terrorists and not surveill every American. If we can put men on the moon surely we can do this…)

Anyway, here is Rep. Sean Duffy making a point…


Snail Mail Snooping: Privacy vs Secrecy

Ok, admit it. There is a difference between snooping at your snail mail and capturing the electronic header information in all your emails. You would agree that there is a difference, right?


In addition to the email and phone metadata the U.S. government is tracking, the feds also have an eye on your regular old snail mail, which is actually a “treasure trove of information,” according to a former FBI agent who used to work with the Mail Isolation Control and Tracking program, as it’s called. One would think that snail mail, a relic from a former century, wouldn’t provide that much insight into our lives — isn’t it all bills and unwanted brochures by now? But, it’s just about as useful, it not more so, than digital collection. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with — all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena,” James J. Wedick, the FBI agent, told The New York Times‘s Ron Nixon.

That’s pretty much what the NSA can find through digital tracking, as explained here, but the mail surveillance program is even worse from a privacy advocates standpoint because there is zero oversight. “You just fill out a form,” Wedick explains. The U.S. Postal Service grants or denies the request without any judicial overview — there’s not even a secret court involved. And it’s all okay, say courts, because people shouldn’t expect privacy for the outside of their mail. Which: sure, anyone can look at the outside of a given envelope. But, is that the same thing as someone rifling through our mail every single day? Apparently.

Isn’t there a bit of difference between you having your snail mail snooped for a finite period of time and, say, having every email you ever wrote captured in perpetuity?

I was most perplexed by this “people shouldn’t expect privacy for the outside of their mail.”  That may be true but I guarantee that if you go to all your neighbors houses and begin making notes about the who is sending letters to your neighbors that you will be charged with tampering with the mail. There is an expectation that the public-at-large should not have access to your snail mail.

If the courts really meant that you should have no expectation of privacy from the post office or law enforcement, I think we would have a Fourth Amendment issue. I do expect and should expect that no one is recording the mail I receive, when I receive it, and who has sent it.

I feel the same way about my garbage. Just because I put it out by the street to be picked up by the garbage company (that I contract with) does not mean that I expect my private garbage to be recorded by persons unknown to me. I know the courts have ruled contrary to my thinking but that does not make them right when they simply usurp my control over my garbage. Besides, the things I get in the mail are often later in the garbage. Except this time they are opened. Some anyway.

Perhaps what I am trying to say is that I should not have to create a defensive method or process to preserve my privacy from the prying eyes of persons unknown. The law should be on my side and not against me. It is a burdensome law that impresses me to actively prevent someone from usurping my information.

It may be GIGO to you but it is still my Garbage In and my Garbage Out.

It seems to me that the issue is the definition of ‘privacy’ as opposed to ‘secrecy’. The courts appear to consider that your expectations of secrecy are the same as your expectations of privacy  but they are not. I do not expect my mail to remain secret ( known only to me and those I choose to share it with) but I do expect it to remain private (not known by others who have no business knowing it but known by those who temporarily have to know it to complete their task with it).

My emails are the same. If you have to deal with the information to complete some task, then go ahead. But you have no right to record it for analysis and save it forever.

There are times when things should be secret rather than simply private and it is my responsibility to do that. However, I also have an expectation of privacy even when it is not necessarily a secret.





The Right to be Anonymous: an unenumerated right

Imagine a world in which you no longer control your identity. You go out in public and your picture is taken; facial recognition programs identify you and then relay your whereabouts to your permanent dossier some place in Utah’s new super secret facility for tracking citizens. Your GPS coordinates are encoded to show where you were at the time.

You walk into the local grocery store, your picture is snapped and you are identified. Your purchases and buying patterns are recorded. Did you buy condoms, EPT, or sanitary napkins? How about diet shakes and apple pie? Do you really want this stored and ultimately used to hound you over and over again with discounts for the same or similar products? For effing ever?

You accidentally drive through a stop sign and your picture is shagged and forwarded to your insurance company as well as law enforcement. You are sent a ticket with a return envelope in order to pay a fine. No harm was done to anyone by your actions but the state or the city realized that they had a great source of revenue from those illegal things you do when no one is looking. What kind of world is it when your private mistakes and private actions become a revenue source for your county, state, or country?

You have a right to be Anonymous in a public place. You have a right to control your audience with an expectation of Anonymity and Privacy when there is no discernible audience. Do you adjust your underwear in elevators? Do you sing along in fully sour notes during baseball games? You have a right to be Anonymous if you so choose provided you are not harming others.

When incarcerated, you have no physical freedom or personal freedom, everything about you is known by the guards and the surveillance system and can be recalled on demand if needed. When you are a free man or free woman or free transexual or free whatever, you have a right to be Anonymous in public.

When the State watches over you, more than God, and records it, there will be Hell to pay..over and over again…

The 4th, 5th, 9th, and 10th Amendment include elements of the right to be Anonymous. If our forefathers were crafting a Constitution today, they would add the Right to Anonymity in the Bill of Rights.

The IRS Spin Campaign in Play

After last week’s ACLU disclosure that the IRS was secretly viewing taxpayer emails without a warrant of probable cause, the IRS public relations department is countering with its own spin machine today.

On page 8A, Opinion Page, of the USA Today,  James Thompson, an associate professor in the Department of Public Affairs for the University of Illinois, pens an opinion on why pumping up IRS enforcement is good for everyone. He says:

“In other words, if the Internal Revenue Service had the capacity to catch those who knowingly or unknowingly evade the law, the burden on those who comply with the law could be lowered.”

he follows that later by saying “By failing to invest in stronger enforcement, the government, is, in effect, penalizing the honest tax payer in favor of the cheat.”

Nary a  word from Professor Thompson about the unconstitutional approach revealed by the ACLU. But then one might wonder if he is a shill. He is from U of I Chicago and he is a professor in the Department of Public Affairs. He is already on the side of government, isn’t he? Perhaps he is not a shill but simply silently assenting to the unconstitutional IRS shenanigans in order to protect the noble Public Affairs profession itself.

A second part of the IRS spin campaign can be found on page 9A with a FACEBOOK link to answer the survey question: “Is the IRS doing enough to fight identity thieves?”  Citing a rise in fraudulent returns from 500,000 in 2009 to 1.8 million in 2012, the question steers you to say ‘no’. The reasonable mind wonders whether somebody changed the definition of fraudulent (purposefully wrong) returns to include taxpayer errors in filings. (How else to explain that meteoric rise?) But the whole effect is to subconciously justify the IRS’ actions to read the emails of taxpayers because, after all, they are just trying to catch thieves. And that is noble , is it not?

What else will the IRS do to offer plausible counters to their unconstitutionality? Let’s wait and see.

(I am also getting an uneasy feeling about U of I Chicago, its faculty, and notable graduates. Should I be concerned?)

Update: I should have waited and read the whole paper before writing the above post. Over on page 1B is this headline: “My tax acccountant is a high school kid”. ( Sometimes you just can’t make this stuff up.) I quote “High schools across the country have turned students as young as freshmen into IRS -certified tax preparers and are having them do free tax returns for low-income community members in partnership with the IRS’ Volunteer Income Tax Assistance Program ( VITA).”

Does anyone think that maybe the IRS is responsible for the 1.8 million fraudulent returns?  Well, perhaps you will enjoy this gem: “Over eight years, A.J. Moore students have prepared more than 10,000 returns and as a result, people have received more than $15.4 million in refunds. The students do such a good job that some folks come from more than 100 miles away to have their taxes prepared…..”

Oh, My Goodness. And nobody wonders why people come from 100 miles away to have tax returns prepared by freshmen who have helped people get $15.4 million in tax refunds. Makes me wonder if the IRS is reading the emails of freshmen at this highschool….Nah, can’t be….Could it?

Oh to be in Public Relations at the IRS. Just throw crap at the wall and see what sticks. From identity theft to needing stronger enforcement to helping kids become tax preparers, just look at all the reasons why you should like and support the IRS… no matter what….